[Federal Register Volume 78, Number 236 (Monday, December 9, 2013)]
[Rules and Regulations]
[Pages 73704-73725]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-29088]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 13 and 22
[Docket No. FWS-R9-MB-2011-0054; FF09M21200-134-FXMB1231099BPP0]
RIN 1018-AX91
Eagle Permits; Changes in the Regulations Governing Eagle
Permitting
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We revise the regulations for permits for take of golden
eagles (Aquila chrysaetos) and bald eagles (Haliaeetus leucocephalus)
that is associated with, but not the purpose of, an activity. We extend
the maximum term for programmatic permits to 30 years, while
maintaining discretion to issue permits of shorter duration as
appropriate. The permits must incorporate conditions specifying
additional measures that may be necessary to ensure the preservation of
eagles, should monitoring data indicate the need for the measures. This
change will facilitate the responsible development of renewable energy
and other projects designed to operate for decades, while continuing to
protect eagles consistent with our statutory mandates. For a permit
valid for 5 years or more, we will assess an application processing fee
sufficient to offset the estimated costs associated with working with
the applicants to develop site plans and conservation measures, and
prepare applications, and for us to review applications. We also will
collect an administration fee when we issue a permit and at 5-year
intervals.
DATES: This rule goes into effect on January 8, 2014.
FOR FURTHER INFORMATION CONTACT: Chief, Division of Migratory Bird
Management, at 703-358-1714.
SUPPLEMENTARY INFORMATION:
Background
The Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d)
(Eagle Act or BGEPA) prohibits take of bald eagles and golden eagles by
otherwise lawful activities, except pursuant to Federal regulations.
The Eagle Act regulations at title 50, part 22 of the Code of Federal
Regulations (CFR), define the ``take'' of an eagle to include the
following broad range of actions: ``pursue, shoot, shoot at, poison,
wound, kill, capture, trap, collect, destroy, molest, or disturb''
(Sec. 22.3). The Eagle Act allows the Secretary of the Interior to
authorize certain otherwise prohibited activities through regulations.
The Secretary is authorized to prescribe regulations permitting the
``taking, possession, and transportation of [bald eagles or golden
eagles] . . . for the scientific or exhibition purposes of public
museums, scientific societies, and zoological parks, or for the
religious purposes of Indian tribes, or . . . for the protection of
wildlife or of agricultural or other interests in any particular
locality,'' provided such permits are ``compatible with the
preservation of the bald eagle or the golden eagle'' (16 U.S.C. 668a).
On September 11, 2009, we, the U.S. Fish and Wildlife Service (FWS
or Service), published a final rule that established new permit
regulations under the Eagle Act for incidental take of eagles (74 FR
46836) while conducting otherwise lawful activities. The regulations at
50 CFR 22.26 provide for permits to take bald eagles and golden eagles
when the taking is associated with, but not the purpose of, an
otherwise lawful activity. The regulations provide for both standard
permits, which authorize individual instances of take that cannot
practicably be avoided, and programmatic permits, which authorize
recurring take that is unavoidable even after implementation of
Advanced Conservation Practices (ACPs). We have issued standard permits
for commercial and residential construction, transportation projects,
maintenance of utility lines and dams, and in a variety of other
circumstances where take is expected to occur in a limited timeframe
and specific location. For instance, take that does not reoccur, such
as temporary abandonment of a nest, or is caused solely by indirect
effects, does not require a programmatic permit, but may require a
standard permit.
``Programmatic take'' of eagles is defined at 50 CFR 22.3 as ``take
that is recurring, is not caused solely by indirect effects, and that
occurs over the long term or in a location or locations that cannot be
specifically identified.'' For additional explanation of programmatic
take and programmatic permits, see 74 FR 46841-46843.
We may issue programmatic permits for disturbance and for take
resulting in mortalities, based on implementation of ACPs developed in
coordination with us. ACPs are ``scientifically supportable measures
approved by the Service that represent the best available techniques to
reduce eagle disturbance and ongoing mortalities to a level where
remaining take is unavoidable'' (50 CFR 22.3). Most take authorized
under Sec. 22.26 has been in the form of disturbance. However, permits
may authorize lethal take that is incidental to an otherwise lawful
activity, such as mortalities caused by collisions with wind turbines,
powerline electrocutions, and other potential sources of incidental
take.
On the same day that the proposed rule for this rulemaking was
published in the Federal Register (77 FR 22267, April 13, 2012), we
also published an advance notice of proposed rulemaking (ANPR) looking
at all aspects of the 2009 permit regulations (see 77 FR 22278). The
ANPR sought public input on how the regulations could be revised to be
more efficient or otherwise improved. The notice highlighted three
issues about which we were particularly interested in hearing from the
public: (1) The standard for programmatic permits that take must be
reduced to the point where it is unavoidable; (2) mitigation
requirements and options; and (3) our interpretation of the Eagle Act
``Preservation Standard.'' We have reviewed the public comments on the
ANPR. We intend to propose additional revisions to the permit
regulations based
[[Page 73705]]
on the comments received on the ANPR and other factors. Several
comments have suggested that this tenure rule should be labeled as an
interim rule, or state in the rule text that the rule is effective
until it is amended or replaced. In promulgating this final rule, we
note that this rule is effective until amended or replaced and that, as
such, labeling this rule with interim rule text is unnecessary.
Moreover, it is our intention to move ahead in the near future with the
additional rulemaking that we initiated through the ANPR. That
rulemaking will provide an opportunity to revisit all aspects of the
2009 regulations, as well as the provisions of this tenure rule.
Since we published the proposed rule, we have finalized the Eagle
Conservation Plan Guidance (ECPG) Module I for Land-based Wind Energy.
The ECPG describes the processes that the Service recommends wind
energy permit applicants use to conduct eagle surveys, evaluate risk of
activities to eagles, avoid and minimize risks to eagles, compensate
for unavoidable take, and apply an adaptive management framework. For a
more comprehensive discussion of any of these activities related to the
permitting of wind energy facilities, please see the ECPG, which is
available at: http://www.fws.gov/migratorybirds/PDFs/Eagle%20Conservation%20Plan%20Guidance-Module%201.pdf.
A recent assessment of the status of the golden eagle in the
coterminous western United States showed that, over the past 40 years,
populations have been trending slightly downward in some areas and
upwards in others, such that on balance the population appears stable
in response to existing demographic factors (Millsap et al. 2013).
Permit Duration
In February 2011, we published draft Eagle Conservation Plan
Guidance that provided information on how to prepare Eagle Conservation
Plans and apply for eagle take permits. Many commenters recommended
that we extend the maximum term of the permit, as we are doing with
this rule. Since publication of the 2009 final rule, we have reviewed
applications from proponents of renewable energy projects, such as wind
and solar power facilities, for programmatic permits to authorize eagle
take that may result from both the construction and ongoing operations
of renewable energy projects. During our review, it became evident that
the 5-year term limit imposed by the 2009 regulations (see 50 CFR
22.26(h)) should be extended to better correspond to the operational
timeframe of renewable energy projects. On April 13, 2012, we proposed
to amend the regulations to provide for terms of up to 30 years for
programmatic permits (77 FR 22267). In today's rulemaking, we are
finalizing that proposal with minor modifications as described below.
We now: (1) Clarify what will happen during the 5-year reviews; (2)
specify that we will make annual reports and 5-year compilations
available to the public; and (3) clarify the definition of ``low risk''
to eagles. We will revisit the provisions of this rule during our
review of the 2009 eagle rule.
In light of the longer permit durations that we are adopting in
this rulemaking, we intend, if appropriate, to incorporate into the
terms and conditions of the permit a commitment from the applicant to
implement additional, specific mitigation measures. The additional
measures would be triggered if the authorized level of take is exceeded
or if new scientific information demonstrates that the additional
mitigation measures are necessary for the preservation of eagles. These
additional, specific mitigation measures will be described in detail in
the permit, which will describe the consequences to, and requirements
of, the applicant if take greater than was predicted occurs or new
information about eagle populations affected by the activity becomes
available, for example, unexpected declines in affected eagle
populations. However, if the additional mitigation measures prove
inadequate to meet the Eagle Act's preservation standard, the
regulations at Sec. 22.26(c)(7) allow us to further amend any
programmatic permits to safeguard eagle populations--consistent with
the limits jointly agreed to at the outset of each permit. Permit
revocation is a final option if an activity is not compatible with
eagle preservation. We anticipate that implementing additional
mitigation measures identified as permit conditions will reduce the
likelihood of amendments to, or revocation of, the permit.
If the Service and applicant determine that the proposed activity
may be suitable for testing experimental ACPs, we will identify such
measures and protocols for testing their effectiveness. The Service
anticipates limiting costs associated with studying experimental ACPs
associated with any permit.
All quantifiably predicted or verified take (based on past
monitoring) that exceeds take thresholds for the eagle management unit
for the species identified in the 2009 Environmental Assessment (U.S.
Fish and Wildlife Service; Final Environmental Assessment: Proposal to
Permit Take as Provided Under the Bald and Golden Eagle Protection Act;
April 2009) must be offset with compensatory mitigation that results in
no net loss to the population. For activities without ACPs, we will
identify potential risks that are not addressed by avoidance and
minimization measures and experimental ACPs that might address those
risks. We and the permittee will agree on the upper limit on the costs
to implement and on trigger points tied to post construction monitoring
that, if reached, would result in implementation of the experimental
ACPs. If the project causes fatalities that meet or exceed the amount
authorized by the permit, and if experimental ACPs or additional
conservation measures cannot be implemented to reduce those fatalities,
we may have to rescind the permit for that project to comply with the
``stable or increasing breeding population'' standard for protection of
the species, as specified in the 2009 final rule.
Adaptive Management Process
Management of some types of facilities, such as wind energy
facilities, to minimize eagle take, entails a set of recurrent
decisions made in the face of uncertainty. The Department of the
Interior (DOI) has a long history of approaching such decisions through
a process of adaptive management (Williams et al. 2007). The purpose of
adaptive management is to improve long-term management outcomes, by
recognizing where key uncertainties impede decision-making, seeking to
reduce those uncertainties over time, and applying that learning to
subsequent decisions (Walters 1986).
In the case of managing eagle populations in the face of energy
development, there is considerable uncertainty. For example, evidence
shows that in some areas or specific situations, large soaring birds,
specifically raptors, are especially vulnerable to colliding with wind
turbines (Barrios and Rodriguez 2004, Kuvlesky et al. 2007). However,
we are uncertain about the relative importance of different factors
that influence that risk. We are also uncertain which strategies would
best mitigate the effects of wind energy developments on raptors.
Populations of raptors with relatively low fecundity, such as golden
eagles, are more susceptible to population declines due to new sources
of mortality. We face challenges managing eagle populations because we
need better information about: (1) Factors that affect collision risk;
(2)
[[Page 73706]]
factors affecting population trends; and (3) efficacy of various
avoidance and mitigation measures. Our goals are to maintain eagle
populations while authorizing limited incidental take, use adaptive
management to address uncertainty, and improve our predictive
capability over time. Applying a systematic, nationally consistent
strategy of management and monitoring is necessary to accomplish these
goals.
Advanced Conservation Practices and Adaptive Management
We believe that the best course of action is to work with industry
to develop ACPs for wind projects and other activities as an element of
adaptive management associated with the programmatic take permit
process. This process will be applied to other types of projects and
activities where the impacts of the activity are uncertain and measures
to reduce potential take have not been well-tested. A project developer
or operator will be required to implement all available measures to
avoid and minimize incidental take of eagles at a project. For wind
projects, the Service and the project developer or operator will work
together to minimize the impacts of site-specific, and possibly
turbine-specific, factors that may kill or disturb eagles, and develop
ACPs to reduce or eliminate risks that are substantiated by the best
available science. Unless we determine that there is a reasonable
scientific basis to implement experimental ACPs, such potentially
costly measures will be deferred until such time as a predefined
trigger, such as a threshold of eagle use of a defined area or an eagle
fatality, in the permit is reached. At that point, consistent with the
adaptive management process, the permittee will be required to
implement the additional ACP as a condition of the programmatic eagle
take permit. In this way, a project developer or operator will not be
required to expend funds to address a problem that may not exist.
The Service has not currently identified ACPs for wind energy
projects that reduce eagle disturbance and blade-strike mortality. The
development of ACPs for wind energy facilities has been hampered by the
lack of standardized scientific studies of potential ACPs. We have
concluded that the best way to obtain the needed scientific information
is to work with industry to develop ACPs for wind projects, and perhaps
for other industries, as part of an adaptive management regime and
comprehensive research program tied to the programmatic-take-permit
process.
ACPs will be implemented at operating wind facilities with eagle
take permits on an ``experimental'' basis. The ACPs are considered
experimental because they have not yet been scientifically demonstrated
to be effective. The experimental ACPs would be scientifically
evaluated for their effectiveness, as described in detail in the
Service's Eagle Conservation Plan Guidance, and based on the results of
these studies, could be modified in an adaptive management regime. This
approach will provide the needed scientific information for the future
establishment of formal ACPs, while enabling wind energy facilities to
move forward in the interim.
If a permit trigger is reached, developers or operators would be
required to implement the potentially effective experimental ACP(s) and
to monitor future eagle take relative to the ACP(s). As the results
from monitoring experimental ACPs across a number of facilities
accumulate and are analyzed as part of the adaptive management process,
scientific information in support of certain ACPs may accrue, whereas
other ACPs may show little value in reducing take. If we determine that
the available science demonstrates an experimental ACP is effective in
reducing eagle take, we will approve that ACP and require its
implementation when and where warranted and feasible. If this approach
is successful in the context of wind projects, the Service will
consider employing a similar process in developing permitting
provisions for other industries as necessary.
Programmatic Permit Evaluation Process
For projects with programmatic eagle take permits, intensive
monitoring to estimate the actual annual fatality rate and to assess
disturbance effects may be required in accordance with monitoring
provisions at 50 CFR 22.26(c)(2) and (3). Permittees will be expected
to submit annual reports on eagle monitoring and any eagles found
injured or dead at their facility. The Service will make mortality
information from these annual reports available to the public. At no
more than 5-year intervals from the date a permit is issued, the
permittee will compile a report documenting fatality and other
pertinent information for the project and submit the report to the
Service. The Service will review the information with the permittee to
determine if a trigger point has been reached that requires
implementation of one or more experimental ACPs or additional
mitigation measures designed to reduce eagle mortalities. Additional
post-implementation monitoring will be required to determine the
effectiveness of the experimental ACPs. The Service will make mortality
information from the 5-year compilation report available to the public.
We will evaluate each permit issued for more than 5 years at 5-year
intervals. These evaluations will reassess fatality rates,
effectiveness of measures to reduce take, the appropriate level of
compensatory mitigation, and eagle population status. Depending on the
findings of the review, we may make changes to a permit consistent with
its terms and conditions, including any of the following:
(i) Update the fatality predictions for the facility;
(ii) require implementation of additional conservation measures as
described in the permit;
(iii) update monitoring requirements;
(iv) revise compensatory mitigation requirements in accordance with
the permit;
(v) require revisions of the ACPs and additional mitigation
measures; or
(vi) suspend or revoke the permit.
During the initial 5-year review, in consultation with the
permittee, the Service will determine compensatory mitigation for
future years for the project, taking into account the observed levels
of mortality and any reduction in that mortality that is expected due
to implementation of additional experimental and/or established ACPs.
Monitoring to determine the effectiveness of these ACPs and mitigation
efforts will be a permit condition. We will modify the compensatory
mitigation process to adapt to any improvements in our knowledge base
as new data become available.
The specific objectives, duration, or extent of post-construction
monitoring will be tailored to the specific conditions at each site.
For example, the objectives of post-construction monitoring at a low-
risk project will likely be to confirm that actual fatalities do not
exceed some trigger level (likely much higher than the predicted
fatality rate) rather than to confirm the predicted fatality, given
practical limitations on the sampling that would be needed to confirm
precise rates for such rare events. On the other hand, at sites where
modest or relatively high numbers of fatalities are predicted,
increased monitoring (both in rigor and duration) commensurate with the
increased potential population effect will likely be required, and at
sufficient intensity to provide a general indication of the actual
fatality rate.
[[Page 73707]]
NEPA on Adaptive Management Elements
The adaptive management process relevant to each programmatic
permit will need to be reviewed as part of the analysis required under
the National Environmental Policy Act (NEPA) for each permit prior to
permit issuance. If a permittee subsequently proposes to undertake
additional measures beyond what was required in an issued permit and
accompanying NEPA document, the Service will consider whether
additional NEPA analysis is warranted.
Right of Succession and Transferability of Permits
We recognize that a succession of owners may purchase or resell the
affected company or land during the term of the permit. Accordingly, we
are revising regulations at 50 CFR 13.24 (Right of succession by
certain persons) and 13.25 (Transfer of permits and scope of permit
authorization) to allow a programmatic permit to be transferable to the
new owner of a project and to ensure that any successors to the
permittee commit to carrying out the conditions of the permit.
Regulations at 50 CFR 13.24 and 13.25 impose restrictions on the
right of succession and transferability of Service permits. These
restrictions are appropriate for most wildlife permitting situations,
but they are impractical and unduly restrictive for situations in which
the permitted activity will be conducted over a lengthy period of years
and ownership of the land or facility covered by a permit could
reasonably be expected to change over that period.
The regulations at 50 CFR 13.24 allow for one or more successors to
a permit: The surviving spouse, child, executor, administrator, or
other legal representative of a deceased permittee; or a receiver or
trustee in bankruptcy or a court-designated assignee for the benefit of
creditors. For most Service permits, with the exception of certain
long-term permits issued under Endangered Species Act (ESA)
regulations, all the potential successor has needed to do to gain the
privileges of the permit is to ``furnish the permit for endorsement''
to the permit office within 90 days from the date the successor begins
to carry out the permitted activity. Through this rulemaking, a long-
term Eagle Act permit will be subject to the same provisions that have
applied to most Service permits. The permit transfer is subject to our
determination that the successor meets all of the qualifications under
this part for holding it; provides adequate written assurances of
sufficient funding for any applicable conservation plan or agreement;
demonstrates the willingness to implement the relevant terms and
conditions of the permit, including any outstanding minimization and
mitigation requirements; and provides other information necessary for
processing the request.
Section 13.25 addresses the circumstances in which someone other
than the person to whom a permit is issued can carry out actions
authorized by the permit. As a general matter, anyone who is under the
``direct control'' of the permittee or ``under contract to the
permittee for purposes authorized by the permit'' can carry out such
actions. For Eagle Act permits issued to certain governmental
authorities, new paragraph (f) of Sec. 13.25 clarifies that those who
are under the jurisdiction of the permittee are considered to be under
the permittee's direct control, in much the same manner as existing
paragraph (e) treats ESA permits issued in association with habitat
conservation plans, safe harbor agreements, and candidate conservation
agreements with assurances. Similarly, paragraph (b) has been revised
to allow Eagle Act and these three types of ESA permits to be
transferred to one or more transferees based upon a satisfactory joint
submission from the permittee and proposed transferee(s). Thus, this
provision makes possible multi-participant or programmatic arrangements
in which FWS can issue an ESA or Eagle Act permit to a single permittee
who can then transfer the authority of that permit to one or more
transferees with the approval of the FWS. Currently, paragraph (c)
allows for the transfer of Safe Harbor and Candidate Conservation
Agreements with Assurances, but only in the case of the transfer of
lands subject to such agreements. The change made to 50 CFR 13.25(b)
would allow transfer in additional circumstances by allowing the holder
of an Eagle Act permit or a permit authorizing a programmatic Safe
Harbor or Candidate Conservation Agreement with Assurances to transfer
such permit to individual qualifying property owners, subject to FWS
approval.
Permit Application Processing Fee and Administration Fee
This rule also amends the schedule of permit application processing
fees set forth at 50 CFR 13.11 by substantially increasing the fees to
be charged for processing applications for programmatic permits for
incidental take of bald or golden eagles. However, Federal, State,
tribal, and other governmental agencies are exempt from the requirement
to pay permit application processing fees for any permits issued by the
Service (see 50 CFR 13.11(d)(3)(i)). This rule does not affect that
exemption.
Experience to date has demonstrated that the current $1,000 permit
application processing fee for programmatic permits is a very small
percentage of the actual cost of reviewing and processing programmatic
permit applications and providing technical assistance. With the
anticipated costs of administering the permits, particularly those that
authorize the taking of eagles over a decade or more, the current fee
will be insufficient to cover Service expenses.
Executive Branch agencies have been directed to recover costs for
providing special benefits to identifiable recipients (http://www.whitehouse.gov/omb/circulars --a025). Recovered costs would include
those for working with applicants, assessing permit applications, and
undertaking monitoring associated with each permit. The increased
application processing fee reflects the estimated cost to the Service
of developing a management plan for monitoring the effectiveness of the
terms and conditions of the permit.
Most of the costs to the Service will occur during the development
and initiation of projects. The application processing fee combines
both the costs of working with the applicant prior to submitting a
permit application and processing the application. We estimate the cost
of processing an eagle take permit application to be approximately
$36,000. Accordingly, we establish a $36,000 permit application
processing fee for a programmatic permit. We may not approve all permit
applications. As with other permits issued by the Service, we will not
refund the application processing fee unless the application is
withdrawn before we have significantly processed it (50 CFR
13.11(d)(i)).
To recover costs to the Service for monitoring and working with the
permittees over the lives of the permits, we also will collect a permit
administration fee of $2,600 upon each 5-year review of a permit.
Therefore, the total administration fees range from $2,600 for a permit
with tenure of 5 years to $15,600 for a 30-year permit.
We typically assess a fee for processing substantive amendments to
permits during the tenure of a permit. For all programmatic permits,
regardless of duration, the amendment processing fee will be $1,000,
and the fee for
[[Page 73708]]
processing the transfer of a programmatic permit will be $1,000.
For some ongoing activities, such as the operation of some types of
infrastructure, there is a possibility that one or more eagles will be
taken during the lifetimes of the activities, but take is unlikely. In
such cases, we expect many project proponents will not feel compelled
to apply for a permit. Alternatively, some developers may seek the
security provided by a permit if an eagle is killed or injured. This
rule establishes a separate fee category for ``low-risk'' projects.
This category is based on the concept we introduced in the proposed
rule as ``small-impact.'' A number of commenters thought that term was
confusing, so we are replacing it with ``low-risk.'' The idea behind
the ``low-risk'' category is to substantially reduce permit application
processing fees for projects that we can identify, without committing
substantial staff resources, as likely to have minimal or no impacts to
eagles even though take is possible over the lifetime of the project.
Because applications for these projects will require significantly less
work for us to evaluate, we are establishing a permit application
processing fee of $8,000 for ``low-risk'' projects. The administration
fee for these permits is $500 every 5 years.
Under ``low risk'' scenarios, the reduced costs to the Service
result from a variety of factors, including the fact that the project
proponent, rather than the Service, must document the low risk to
eagles, and that there is no need to develop a robust adaptive
management framework for a long-term permit. In contrast, if a reliable
model indicates that the project will take even one eagle, the workload
of the Service will substantially increase.
In our April 2012 proposed rulemaking for these regulations, we
proposed a permit application processing fee of $5,000. The $8,000 fee
we are codifying today is necessary to capture what we estimate to be
the cost of providing technical assistance to low-risk project
developers and reviewing and verifying the data they provide in the
permit application to ensure that they meet the criteria for low-risk
permits.
There are potential benefits to eagles from issuing permits in
situations in which take is unlikely, because such ``low-risk'' permits
will require monitoring and reporting (although less than is required
for typical long-term programmatic permits), providing us with
additional data on eagle use of the project areas and potential impacts
of the permitted activities.
To qualify as ``low-risk,'' the applicant must use models and
predictive tools that we have approved to demonstrate that take is
expected to be less than 0.03 eagles per year (or less than one eagle
over 30 years). This rule establishes the following regulatory
definition of ``low-risk,'' which will be codified at 50 CFR
13.11(d)(4): ``Low-risk'' means a project or activity is unlikely to
take an eagle over a 30-year period and the applicant for a permit for
the project or activity has provided the Service with sufficient data
obtained through Service-approved models and/or predictive tools to
verify that the take is likely to be less than 0.03 eagles per year.
Responses to Comments
Comment: Extending programmatic permit tenure to 30 years
contradicts the Service's statement in the Federal Register notice for
the 2009 regulations that it should not issue permits for periods
longer than 5 years ``because factors may change over a longer period
of time such that a take authorized much earlier would later be
incompatible with the preservation of the bald eagle or the golden
eagle.''
Response: The Service believes that the 5-year limitation on the
duration of BGEPA permits is an unnecessary impediment for activities
or projects that will last more than 5 years. By extending the duration
of permits we expect to have more entities apply for permits and
thereby work with our biologists to avoid and minimize and compensate
for eagle impacts. Adaptive management elements that will be built into
permits and our 5-year evaluations provide the Service with the ability
to manage the permits to ensure adequate mitigation is provided by
permittees to offset predicted detrimental impacts to eagles throughout
the life of the permit. The Service retains the discretion to issue a
permit for a term of less than 30 years, as appropriate.
Comment: The ability to predict and plan over a 30-year period is
extremely limited because many factors that affect eagles and eagle
populations will change considerably over 30 years. And the
uncertainties regarding the population trajectories of golden and bald
eagles are too great to justify issuing 30-year programmatic permits.
The Service does not have sufficient data about current populations of
golden eagles, much less 30 years from now. Changes in adult survival
can disproportionately influence population growth as compared to
changes in birth rates. Population declines can occur very rapidly,
particularly relative to the slow response time of government and
particularly in light of climate change.
Response: The adaptive management elements that will be built into
permits, along with our 5-year evaluations, provide the Service with
the ability to manage the permits to ensure adequate mitigation is
provided by permittees to offset detrimental impacts to eagles
throughout the life of the permit.
Comment: Cumulative impacts from wind power on eagles are highly
uncertain as there have been no large-scale studies on either a
regional or national level. In addition to direct mortalities,
cumulative impacts from loss of habitat may be significant and do not
seem to be accounted for in the regulations or the Service's draft
Eagle Conservation Plan Guidance. What would happen if the Service
needed to decrease regional take thresholds and existing 30-year take
permits put permittees over the threshold? If cumulative impacts prove
to be unsustainable for eagles, how would the Service decide which
permits to suspend or revoke?
Response: Under the terms of the 2009 permit regulation and
associated EA, eagle take permits that exceed take thresholds for the
affected regional eagle management units, either singly or in
combination with other analyzed forms of take, must require that the
eagle take be offset so that there is no net loss to the breeding
population. Take thresholds may be adjusted up or down over time based
on the changing status of eagle populations. If a take threshold is
lowered, resulting in a programmatic eagle take permit exceeding the
new threshold, the Service will work with the permittee to implement
additional measures to avoid and minimize take and implement
compensatory mitigation pursuant to the adaptive management process.
The permittee may be able to undertake additional conservation measures
in the form of operational changes or compensatory mitigation. If there
are multiple permits within the affected eagle management unit, each
permittee would have to implement or contribute in proportion to
additional mitigation.
Comment: Golden eagles could require ESA listing during the next 30
years. How does the Service plan to address the following three
questions?
(1) If the golden eagle (or either species) were listed as a
threatened or endangered species, and a wind energy developer then
later sought to construct a facility on private land that might result
in eagle take, which permits would the developer need to obtain to
avoid liability for incidental take: An incidental take permit (ITP)
under the
[[Page 73709]]
ESA, a programmatic take permit under the Eagle Act, both permits, or a
combined single permit?
(2) If a developer were issued an Eagle Act programmatic permit for
a wind facility on private land, and the golden eagle (or either
species) were then later listed as a threatened or endangered species
during the life of the permit, would the existing programmatic take
permit exempt the permittee from the take prohibition under the ESA or
would the permittee need to apply for an ESA Section 10 ITP to avoid
liability?
(3) If the permitted facility in (2) had a federal nexus at the
time the Eagle Act programmatic permit was issued (e.g., the project
required fill of wetlands and a 404 permit issued by the Federal
Government), would an ESA Section 7 consultation be required at the
time of listing with respect to the eagle species covered by the
programmatic permit?
Response: If golden or bald eagles are listed as threatened or
endangered under the ESA, a project proponent or operator should
evaluate the risk to the listed species, and, if appropriate, apply for
an incidental take permit under the ESA. ESA incidental take permits
also constitute Eagle Act permits as provided by 50 CFR 22.11(a). With
regard to (2), if the project was already permitted under the Eagle
Act, and the eagle was then listed under the ESA, the permittee would
not need additional authorization under the ESA because Sec. 22.11(b)
provides that a permit is not needed under ESA regulations if the
activity has been permitted under Eagle Act regulations. In response to
(3), a section 7 consultation would be required at the time the eagle
was listed under the ESA if there was an ongoing Federal action that
affects the species. Many wind projects are currently obtaining ESA
incidental take authorization for listed species under section 7
consultations. If the Service were to list golden or bald eagles under
the ESA, project operators could seek similar coverage for listed
eagles.
Comment: The 30-year permit tenure shifts the burden to the Service
to show that additional mitigation measures are necessary. The criteria
for renewal of a permit (which an applicant must demonstrate) are more
stringent and thorough than criteria for amendment or suspension (which
the Service must demonstrate). To renew a permit, the applicant must
show that it has incorporated the latest scientific and technological
information into its activities and that take continues to be
unavoidable, whereas, under the proposed rule, no changes will be made
to permitted activities unless the Service is able to demonstrate such
changes are necessary to safeguard eagle populations. For 5-year
permits, the project proponent, who has the resources to gather the
necessary information and a critical need to do so, is charged with
regularly gathering and presenting that information in order to secure
permit renewal. Under a 30-year permit, inertia, scarce resources, and
the press of other work may mean that the permit stands unexamined or
is cursorily reviewed.
Response: The Service has determined that, by incorporating
adaptive management elements into permits and conducting 5-year
reviews, the agency can effectively manage the permits in a manner that
will offset detrimental impacts to eagles throughout the life of the
permit. To offset the use of agency resources, the Service will collect
a permit administration fee of $2,600 for each 5-year review.
Comment: The Service should consider creating a ``provisional
permit'' that could be issued for the 30-year period, with concurrent
full permits issued for 5-year periods therein. This could provide a
somewhat streamlined process for full permit renewal at 5-year
intervals, but would require thorough review of permit conditions with
respect to current population levels, mortality rates, and cumulative
impacts. The burden of proof would remain with the permittee to prove
that the project meets the criteria for renewal.
Response: We considered this idea, but rejected it because it would
require significant additional resources for the Service and it would
not provide project developers the certainty provided by a permit for
the anticipated project life. By implementing the comprehensive
adaptive management program described in this final rule, the Service
can work with project operators to manage their activities in ways that
meet our eagle conservation mandates.
Comment: A 30-year permit would decrease opportunities for public
stakeholder involvement because decisions on issuance and reissuance
are subject to NEPA analysis and tribal consultation.
Response: Leaving the 5-year maximum permit term in place would
have allowed for additional public and Tribal comment during the NEPA
process for each of the multiple permit applications the Service would
have evaluated for an activity expected to last decades. However, the
NEPA analysis that we will undertake before issuing a longer-term
permit will thoroughly analyze long-term effects of such permits with
input from the public. One of the central objectives of this regulation
is to provide more certainty to project developers for the operational
life of a project. With the inclusion of the 5-year review provision,
we believe this final regulation strikes a good balance between
providing that certainty and ensuring that eagles continue to be
protected as they are under shorter-term permits.
Comment: A 30-year permit is not necessary for long-term wind
energy projects because the timeframe of investment and financing for
wind energy projects is relatively short. The Service does not cite any
documentation that the 5-year permit is incompatible with development
of renewable energy.
Response: Wind developers have informed the DOI and the Service
that 5-year permits have inhibited their ability to obtain financing,
and we changed the regulations to accommodate that need while
protecting eagles. Moreover, we may issue permits with shorter terms
than the allowable 30-year maximum tenure, when appropriate.
Comment: Extended permit tenure should occur only if the total
amount of authorized take remains the same as it would be under 5-year
permits.
Response: Because long-term permits will be for projects that will
be operational for more than 5 years, we assume this commenter meant
that a 30-year permit should not authorize more take than would be
authorized under a series of 5-year permits. The adaptive management
elements that will be built into permits, along with our 5-year
evaluations, will ensure that the total amount of authorized take will
remain the same under the extended permit tenure as it would be under a
series of 5-year permits and will remain compatible with the
preservation of eagles.
Comment: If additional conservation measures in the 30 years a
permit is valid would be required as frequently as permit changes would
be required upon renewal of 5-year permits--that is, if the 30-year
permits will be as effective in the requirement to protect eagles--then
moving to 30-year permits provides industry with no greater certainty.
Response: The final regulations strike a balance between providing
certainty to project proponents by extending permits to up to 30 years,
and ensuring that the Service maintains the oversight and tools it
would have at its disposal to protect eagles with a series of 5-year
reviews of permits.
Comment: A 30-year permit tenure (along with permit transferability
to new owners) will weaken the Service's ability to investigate and
prosecute
[[Page 73710]]
violations because each subsequent owner (and new permittee) will enjoy
a grace period before any action is taken.
Response: We have long encouraged industries to employ ``best
practices'' aimed at minimizing and avoiding the unpermitted take of
protected eagles and other migratory birds. Each investigation presents
unique factual and evidentiary factors. Therefore, this regulation is
consistent with the general Service policy of providing notice,
encouraging compliance, and offering an opportunity to correct before
pursuing charges against a permittee. Service agents refer for
prosecution in instances of takes that occur after the responsible
party becomes aware of the condition or practice causing the take and
fails to remedy it. Unless a notice would compromise an investigation,
the Service notifies the company or individual of the issue(s) relating
to the take of eagles and provides the company or individual an
opportunity to take remedial action to halt and/or minimize the take.
Where possible, we work with the company or individual to facilitate
communication of appropriate guidance to help eliminate any future take
of eagles. We also document the relevant actions taken, or not taken,
by the company or individual following notice.
Comment: A 30-year permit tenure will not be long enough for some
wind facilities. The Service should state that the permit renewal
should be--just like ESA section 10 permits--automatic.
Response: Permit renewal for ESA section 10 permits is not
automatic. Renewal of a permit is an issuance of a new permit, and all
issuance criteria must be met. We believe the 30-year permit tenure
will provide sufficient long-term certainty for project proponents (who
will have the option of renewing their permits as long as the projects
continue to meet permit issuance criteria).
Comment: Many utilities have maintained long-term Avian Protection
Plans (``APPs'') that proactively address concerns relating to avian
mortality. Implementation of APPs has been advantageous, allowing for a
cooperative model to address concerns, rather than through a more rigid
permitting scheme that adds cost to avian protection activities. If
necessary, the Service could issue Letters of Authorization for take at
facilities with APPs. It is important to ensure that development and
implementation of APPs remains a viable option to address the same
concerns that a 30-year programmatic permit would address.
Response: An Avian Protection Plan (APP) is a voluntary good-faith
effort to protect and conserve migratory birds, including eagles, by
reducing the risk of and damage from avian interactions with power
lines, wind turbines, or other infrastructure. APPs are developed by
companies, sometimes in consultation with the Service or other
government agencies. They are designed to target the risks that are
present at the particular utility or infrastructure. APPs focus on
preventing avian mortality by identifying areas of high bird use and
establishing protocols for retrofitting equipment and/or modifying
operations to protect avian species. The plans include monitoring and
reporting protocols for documenting avian interactions for purposes of
adaptive management and further reduction of hazards to birds.
Lower risk to birds generally correlates with greater reliability
for the operations of the utility or other facility. By reducing avian
mortalities, implementation of APPs also will reduce the facility's
liability under the MBTA and the Eagle Act. For all those reasons, the
Service strongly encourages development of APPs. However, an APP is not
an authorization for any take that still occurs despite the APP. In
most cases, facilities that are operating under well-designed APPs
should find the eagle take permitting process more expedient. They also
will generally need to implement fewer additional conservation measures
as permit conditions.
Comment: There is language in the proposal that a permit is not
necessary if there will be no impact; however, ``if any take will
occur, a permit is necessary.'' This language suggests that all forms
of existing and future eagle take will require permits.
Response: Take of bald and golden eagles is illegal under the
Migratory Bird Treaty Act and the Eagle Act. To remove liability for
take under both statutes, a permit is needed. The language referenced
by the commenter reads: ``If there will be no impact, a permit is not
necessary or appropriate. However, if any take will occur, a permit is
necessary to avoid violating the Eagle Act and developers and operators
of small-impact projects may wish to seek the coverage provided by a
programmatic permit . . .''
Comment: Eagle take permits should be required before construction
for all projects located in eagle habitat. Existing facilities should
be required to apply for take permits, share existing data, and begin
surveys using similar protocols as newly permitted facilities.
Response: The Eagle Act does not directly regulate otherwise legal
activities that may result in the take of an eagle. Certain effects of
otherwise lawful activities, such as construction and operation of wind
facilities, can result in actions that are prohibited under the Eagle
Act, such as disturbance, injury, or killing of eagles. Accordingly,
eagle take permits do not authorize construction or operation of a
facility, per se, and are not required to construct or operate such
facilities. What the permit authorizes is eagle take that may result
from the construction or operation. It is the responsibility--and
choice--of the developer, operator, or landowner to seek a permit and
avoid liability for such take. However the Service encourages all
entities with a project that has a potential to incidentally take
eagles to obtain an eagle take permit prior to undertaking activities
that could result in such takes.
Comment: The Service should make long-term permits available to
existing facilities that began operations prior to 2009, even though
opportunities for avoiding take are more limited. These facilities
represent an opportunity to explore post-construction avoidance,
minimization, and mitigation techniques.
Response: Eagle take permits are available to facilities that were
operating prior to 2009. We anticipated that many such facilities would
seek and obtain these permits. To date, the Service has received few
eagle take permit applications from operating wind energy facilities.
We stated in the 2009 final rule implementing the regulation (74 FR
46836) that, because the requirements for obtaining programmatic take
authorization are intended to reduce take, the take authorized by
programmatic permits for activities ongoing prior to 2009 will neither
be subtracted from regional thresholds, nor will it be subject to the
prioritization criteria. The reductions in take that result from
implementation of new measures to reduce take from ongoing activities
under programmatic permits may allow the Service to increase take
thresholds and make additional permits available for other activities
likely to result in take.
Comment: Extension of permits for industry to 30 years prioritizes
commercial activities over tribal cultural and religious needs because
it will allow industry to take a larger, disproportionate number of
eagles, while tribal members will be subject to the same limits imposed
by the existing permit system. Issuing 30-year programmatic permits
could de facto change the priority order for who should receive eagle
take permits established by the 2009 regulations.
[[Page 73711]]
Response: In the ``eagle take rule'' (50 CFR 22.26(4)), the Service
identified a priority order for eagles available to be taken under
permit as (in priority order): (1) Safety emergencies; (2) Native
American religious use for rites and ceremonies that require eagles be
taken from the wild; (3) renewal of programmatic take permits; (4)
nonemergency activities necessary to ensure public health and safety;
and (5) other interests. Under the eagle take rule, before we issue a
permit we must find that issuance of the permit will not preclude
issuance of another permit for an interest of higher priority. On a
regional scale, issuance of 30-year permits should not change the
availability of eagles for higher priorities, such as Native American
religious use. Each long-term permit must meet the criterion that it is
compatible with the goal of maintaining stable or increasing breeding
populations of both species of eagles. Therefore, these long-term
permits will not decrease eagle populations within eagle management
units, and requests from higher priority applicants should not be
affected.
Comment: Will 30-year permittees be required to comply with new
laws or regulations that might be put into effect during the permit
tenure?
Response: Unless laws or regulations contain provisions excluding
certain persons or organizations, the provisions of such laws and
regulations apply to all.
Comment: The regulations should restrict permits for long-term,
industrial-scale projects to applicants who have conducted
comprehensive pre-construction monitoring using rigorous methods
endorsed by the Service.
Response: The regulations do not specify the precise methods
applicants must use to conduct pre-construction monitoring. However,
for purposes of wind energy development, the Service has developed the
voluntary Wind Energy Guidelines and Eagle Conservation Plan Guidance,
both of which provide detailed guidance on monitoring methods and data
that would be useful to assess risk of project operations to eagles,
other migratory birds, and wildlife. Much of this guidance would be
applicable for other industries as well. Permit applicants do not have
to follow this guidance, but their data should meet an equal level of
rigor to allow us to assess impacts on eagles.
Mitigation and Adaptive Management
Comment: The Service is on record stating that it knows of no
measures to reduce take at wind energy facilities (once sited and
operational). The only proven method to reduce mortalities is to remove
or decommission turbines. Therefore, what mitigation measures can the
Service actually incorporate as conditions for adaptive management
under these permits? Any measures to reduce take that are demonstrably
effective should be required already as conditions of a programmatic
take permit, and should not be classified as ``additional.''
Response: The preamble to the 2009 permit regulations envisioned
the Service and industry working together to identify and evaluate
possible ACPs. The process of ACP development for wind-energy
facilities has been hampered because there has been little standardized
scientific study of potential ACPs. Such information can best be
obtained through experimental application of ACPs at operating
facilities with eagle take permits. Considering the pressing need to
develop ACPs for wind-energy facilities, the Service believes that the
best course of action is to work with industry to develop ACPs for wind
projects as part of the programmatic take permit process. Under this
scenario, a project developer or operator will still be expected to
implement any reasonable avoidance and minimization measures that may
reduce take of eagles at a project. However, the Service and the
project developer or operator will discuss and agree on other site-
specific, and possibly turbine-specific, factors that may pose risks to
eagles and potential future ACPs that might reduce or eliminate those
risks. Unless the Service determines that there is a reasonable
scientific basis to implement prospective ACPs up front, potentially
costly measures may be deferred until such time as there is eagle take
at the facility and the circumstances and evidence surrounding
instances of take or risk of take suggest the prospective ACPs are
warranted. This agreement would be specified as a condition of the
programmatic eagle take permit.
If eagle take is confirmed through post-construction monitoring,
developers or operators would be expected to implement the potentially
effective experimental ACP(s) and to monitor future eagle take relative
to the ACP(s) as part of the adaptive management process. As the
results from monitoring experimental ACPs across a number of facilities
accumulate and are analyzed as part of the adaptive management process,
scientific information in support of certain ACPs may accrue, whereas
other ACPs may show little value in reducing take. If the Service
determines that the available science demonstrates an experimental ACP
is effective in reducing eagle take, the Service will approve that ACP
and require its implementation when and where warranted.
Comment: The regulations need to be much clearer about when
adaptive management measures will be required; the proposed rule states
that the permittee will be required to undertake additional measures in
the event that take exceeds predicted levels or if new information
indicates that such measures are necessary to protect eagles. Trigger
mechanisms and mid-course changes must be unambiguously identified
prior to permit issuance. Will additional measures be required of
project proponents to address unforeseen circumstances? Will permittees
be required to implement measures that were not considered at the
outset and, therefore, were not specifically included as conditions of
the permit?
Response: See our response to the previous comment. Also, the
triggers that would initiate operational response will be described in
each permit. The triggers will be project specific, and should address
potential risks associated with the project. Triggers may include
exceeding a set number of eagle fatalities, eagle use exceeding a set
threshold, fatalities confirmed at a particular turbine or set of
turbines identified as potentially risky, occupancy of a particular
eagle nest site, or other measures.
Comment: Adaptive management must be ``active adaptive
management.'' Experimental variation in technology would need to be
required at the outset. The trigger for implementing additional
measures cannot depend on evidence of the effectiveness of the
measures, since that evidence has not yet been collected. In order to
comply with the regulations for programmatic permits, which require
take to be unavoidable, the Service must be able to require
implementation of new technologies that become available during the
life of the permit.
Response: As a general matter, we do not agree that project
developers should be required to undertake experimental measures when
the efficacy of such measures has not been demonstrated. However,
Section 22.26(h)(2) of this regulation provides that the Service may,
as part of the 5-year review process, require that permittees implement
``additional conservation measures as described in the permit.'' Thus,
the Service has the discretion to condition permits to require
implementation of ACPs that become available during the life of the
permit.
[[Page 73712]]
In addition, if the Service determines that the available science
demonstrates an experimental ACP is effective in reducing eagle take,
the Service will approve that ACP and require its implementation
upfront on new projects if warranted.
Comment: The rule does not provide sufficient predictability for
wind developers because it does not contain ``No Surprises''
assurances. Any additional mitigation measures that may be required
must be specifically identified up-front as permit conditions.
Requiring the best-available techniques is too stringent, as these may
be overly complex, costly, and untested. If measures cannot be
specifically pre-defined, there needs to be a cost cap above which
developers will not have to pay. The proposed rule would provide permit
holders with no assurances that unanticipated, overly burdensome
mitigation measures will not be placed on them or that the authorized
level of take will be reduced whenever the Service deems that new
scientific information calls for additional conservation measures. The
lack of cost certainty throughout the life of the permit will
significantly impact the wind energy industry. Without ``No Surprises''
assurances, potential investors will be very conservative in their
assumptions, thereby inhibiting funding.
Response: Provision of ``No Surprises'' assurances is beyond the
scope of this rulemaking. However the adaptive management process is
intended to remove the possibility of any surprises by clarifying where
and when additional measures would apply and what factors would trigger
these measures. Under the Eagle Act, permits must be compatible with
eagle preservation. If eagle populations decline because of cumulative
take or other environmental causes, we believe that a single permittee
should not bear the cost of all additional conservation measures and/or
reductions in authorized take that may be needed to stabilize the eagle
population; additional actions and costs would be proportionately
dispersed among permittees depending on the degree to which their
activities impact eagles within the eagle management unit.
Comment: Language used in the proposed rule indicates that the U.S.
Fish and Wildlife Service can alter the terms of the permit at its
discretion or revoke the permit if the activity is not compatible with
the preservation of the eagle. The language seems to indicate a decline
in eagle populations could cause the Service to alter or revoke a
permit even if the permittee was following all stipulations of the
permit. How does this provide an incentive to a utility to obtain a
take permit and invest in additional protection or mitigation programs?
Response: The comment refers to the Service's regulatory authority
under the general permit regulations at 50 CFR Part 13. This authority
applies to all wildlife permits issued by the Service. Through the
Eagle Act, Congress provided the authority for the Service to issue
take permits for eagles, but only when they are compatible with the
preservation of the bald eagle and the golden eagle. We interpret this
to mean that the permit must adequately protect eagles throughout the
duration of the permit, and not just on the day the permit is issued.
The general permit regulations provide one avenue for the Service to
ensure adequate protection of eagles through the full term of each
permit.
Comment: It is unlikely that additional mitigation measures could
provide enough specificity to reduce uncertainty with respect to the
proponent's cost while still incorporating meaningful adaptive
management.
Response: We recognize the challenge in striking a balance between
providing certainty to project proponents and protecting eagles.
However, we do not agree that the provisions being promulgated in this
rule create or increase the difficulty in reconciling the two
objectives. Whether permits are issued for 5-year terms and then
renewed (or not renewed), or the permits are issued for up to 30 years
but reviewed every 5 years, the tension between providing proponents of
longer-term projects certainty and protecting eagles would exist.
Comment: Additional mitigation measures should be required only if
an eagle population is declining at the national, rather than at the
local or regional level, since smaller populations are inherently more
vulnerable than the entire species.
Response: On the basis of the analysis conducted in the final
environmental assessment supporting promulgation of the 2009 eagle
permit rule, we committed to managing eagles under all eagle permits at
the scale of the regional eagle management units. Even at this scale,
several State fish and wildlife agencies expressed concern about the
possibility of harming eagle populations at finer scales. Accordingly,
we will continue to assess the effects of our permits on eagle
populations at regional and local-area population scales.
Comment: Adaptive management should be designed to respond to
environmental and demographic changes at the population, subpopulation,
and metapopulation scales.
Response: We agree and intend to use adaptive management to respond
to changes at each of these scales, to the degree we can detect
changes.
Comment: With Federal budgets in decline, it seems doubtful the
Service will have the staff, tools, mechanisms, and resources needed to
implement adaptive management.
Response: The Service and other Federal agencies face challenges in
carrying out their missions in the face of shrinking budgets. However,
the eagle conservation and permitting program is a Service priority.
Accordingly, the Service based our revised fee schedule on our estimate
of staff time necessary to process permit applications, review monitor
reports, and engage in adaptive management discussions.
Comment: The current level of oversight the Service anticipates
performing for long-term permits is grossly insufficient. The Service
estimates that only 35 hours of agency time would be needed to visit
facilities and evaluate impacts of permitted activities over 30 years.
Response: The estimate for post-issuance oversight for each 30-year
permit, which we published in our proposed rule, is not 35 hours. That
was the estimate for the average amount of time we expect to spend on
site visits (not including potential law enforcement investigations).
In addition to potential site visits, which we do not expect will be
required for many permits, our estimate also includes an additional
estimated 140 hours to monitor annual reports and an additional 76
hours to evaluate impacts for purposes of implementation of adaptive
management measures.
Comment: Compensatory mitigation should be required only for
actual, rather than predicted take, and thus should be assessed only as
take occurs. There is evidence that eagles may be able to learn to
avoid turbine blades; thus by calculating the risk of eagle take
through a formula that does not account for eagle avoidance of blades,
and then requiring compensatory mitigation to completely offset that
level of assumed take, the Service sets the compensatory mitigation
level too high and requires compensation for ``phantom'' take that may
never occur. There should be a process for refunding or crediting
compensatory mitigation funds if the actual take is less than
predicted.
Response: We will assess compensatory mitigation in 5-year
increments, regardless of permit tenure.
[[Page 73713]]
At the end of the first 5-year period, actual take will be compared
with predicted take, and if actual take is different, adjustments may
be made. One adjustment could be using the actual fatality rate to
update the predicted fatality rate for future years.
We are not aware of published evidence that eagles learn to avoid
turbine blades, but if such learning occurs it should be apparent in
lower-than-predicted fatality rates over time. As such, this behavior
would likely be accounted for in the adjustments between predicted and
observed fatality rates for each permitted project.
Comment: It is unclear to what degree the status of an eagle
population will be attributed to the take associated with a given
project.
Response: The Service is working with the U.S. Geological Survey
(USGS) to refine and improve population models for eagles that will
better enable us to model and predict effects of authorized take on
eagle populations. We do not anticipate being able to directly detect
population-level responses to individual projects because it is not
currently feasible to monitor eagle populations at such a fine scale.
However, with monitoring and assessment of cumulative impacts, we may
be able to better predict the effects of authorized take.
Comment: If changes to the permit terms and conditions are expected
by the Service during the pendency of the permit, the permittee should
be provided as much advance notice as possible to plan and budget for
potential changes in mitigation requirements. Periodic meetings (e.g.,
annually) between the permittee and the Service would be appropriate to
ensure that both parties are informed on any potential issues or
concerns.
Response: The Service will make a good faith effort to keep
permittees informed of factors that may affect their permits.
Comment: All mitigation measures should be independently monitored
to ensure they are successful.
Response: As far as onsite mitigation, intensive, targeted
monitoring will be required when necessary to determine the
effectiveness of conservation measures and ACPs implemented to reduce
observed fatalities. For offsite mitigation, the Service does not have
the resources to monitor all mitigation measures or the budget to hire
a third party to do so. However, we will evaluate a large enough sample
to ensure that such measures produce the expected outcomes.
Comment: The Service should consider developing some form of
partnership or other mechanism to facilitate the pooled mitigation
needs of project developers and to support the ongoing research that
will be necessary to test mitigation techniques and verify their
utility.
Response: We are open to considering partnerships and other
mechanisms to identify efficiencies for mitigation at specific
projects, explore opportunities to achieve large-scale eagle habitat
conservation, and support additional research into mitigation
techniques. Also, because permittees will be required to monitor and
report the effectiveness of experimental mitigation techniques, the
permit program itself is an opportunity to test such measures.
Rulemaking Process
Comment: The decisions on issues set forth in the ANPR that was
published concurrently with the proposed rule to extend permit tenure
are prerequisites to any decision on permit duration and should be
addressed concurrently.
Response: We agree that many of the issues addressed in the two
rulemaking initiatives are closely related. However, we believe the
issue of extending the permit duration is sufficiently independent from
and more time sensitive than the issues highlighted in the ANPR to move
forward with this final rule at this time. Further, the extension of
the permit duration provides more certainty to developers of clean
energy projects. We intend to revisit the issues addressed in the ANPR
in a future proposed rule.
Comment: Making this rule change without tribal consultation, as is
described by the Federal Register notice, contradicts the Department of
the Interior's renewed commitment to consultation as set forth in new
DOI guidance.
Response: This is a technical amendment to our regulations. It
merely extends the approved duration of a permit from 5 to 30 years.
The Service has recently invited tribes across the Nation to consult
with us on several eagle conservation and management matters including
possible additional, substantive revisions to the 2009 eagle rule. We
will also invite consultation with any tribes that may be directly
affected by individual permit applications
Comment: Traditional Ecological Knowledge (TEK) about eagles should
have been sought. Tribes have unique insights into ecosystem management
and have worked in partnership with the Service in the past to ensure
that TEK is incorporated into management plans, including for
threatened and endangered species, forests, fisheries, range, and fire
management. Incorporation of TEK has ensured that land management
policies do not jeopardize species habitat and the continued existence,
preservation, and recovery of endangered and threatened species.
Response: We will consult with tribes and seek TEK on individual
projects as appropriate.
Comment: The Service should more closely involve the States in the
planning process rather than listening only to the permitted public.
Wildlife management in many States is heavily affected by the
regulatory actions of the Service.
Response: We will coordinate with States in both the revision of
the eagle rule and on individual project applications. States are also
welcome to provide comments during the public comment period for any of
our proposed rules.
NEPA
Comment: When an agency decides to apply a categorical exclusion
and foregoes preparation of an environmental assessment (EA) or
environmental impact statement (EIS), it is required under NEPA to
adequately explain its decision, but the Service has not done so.
Response: We believe that the determination to apply a categorical
exclusion to this administrative action was adequately explained in the
proposed rule. The basis for applying the categorical exclusion is
explained in further detail in the Required Determinations section of
this final rule and in our responses to additional NEPA-related
comments below.
Comment: The proposed rule changes are more than ``administrative''
in nature and so do not fall under the NEPA categorical exclusion
invoked by the Service. Real, significant, and cumulative biological
impacts will result if the proposed regulatory changes are implemented.
Response: We received several requests for clarification from
commenters regarding our reliance upon the Department of the Interior
categorical exclusion, 43 CFR 46.210(i), and have revised our
explanation in light of these comments. Our revised explanation is
presented here, as well as below in the Required Determinations
section. First, the categorical exclusion upon which we are relying
excludes from further NEPA analysis ``Policies, directives,
regulations, and guidelines: that are of an administrative, financial,
legal, technical, or procedural nature; or whose environmental effects
are too broad, speculative, or conjectural to
[[Page 73714]]
lend themselves to meaningful analysis and will later be subject to the
NEPA process, either collectively, or case-by-case.'' The provisions of
this rule are administrative or financial in nature, and therefore,
subject to the first part of this categorical exclusion. For instance,
the implementation of a new fee schedule, the adjustments to the permit
transfer and right of succession requirements, and the reduction of the
administrative burdens and duplication of effort represented by the
extension of permit duration to a possible 30-years, instead of the
current 5-year limit, under which proponents of longer-term projects
must apply for, and the FWS review permits more frequently.
More importantly, however, the extension of the allowable permit
duration from 5 to 30 years is subject to the second part of this
categorical exclusion because it will be broadly implemented. Issuance
of a permit of whatever duration for take of eagles requires compliance
with NEPA. Extending the permit tenure from 5 years to 30 years will
not cause environmental effects that lend themselves to meaningful
analysis; instead, the effects of the permit tenure will be addressed
on a case-by-case basis. A 50 CFR 22.26 eagle permit must contain
permit conditions and be supported by an appropriate NEPA analysis that
ensure the underlying project or action will continue to meet
regulatory requirements, and that any take meets the Eagle Act's
preservation standard throughout the entire duration of the permit,
whether it is 5 years or 30 years. A permit with a duration of 30 years
is, thus, likely to contain more conditions than a permit with a
duration of 5 years to ensure continued compliance over the longer time
span, including conditions that incorporate adaptive management
principles, and be supported by appropriate NEPA analysis in the
context of adaptive management as directed by 43 CFR 46.145 to account
for reasonably anticipated changed circumstances. Additional conditions
may include specific mitigation measures, possibly including additional
compensatory mitigation requirements, that are triggered if actual take
caused by the project exceeds anticipated take or to account for a
reduction in local or regional eagle populations. Moreover, if such
conditions prove inadequate at any time, the Service is authorized to
amend permits as necessary under both paragraph (c)(7) of 50 CFR
22.26--establishing that the Service may amend and even revoke permits
as necessary to safeguard eagle populations--and paragraph (b) of
general permit regulation 50 CFR 13.23, under which the Service may
amend a permit for just cause at any time upon a written finding of
necessity.
Finally, pursuant to 43 CFR 46.205(c), we have reviewed our
reliance upon this categorical exclusion against the Department of the
Interior's list of extraordinary circumstances (reproduced at 43 CFR
46.215), and find that none apply to this rule.
Comment: The Finding of No Significant Impact (FONSI) associated
with the 2009 final rule committed the Service to measures to mitigate
and/or minimize potential adverse effects of the 2009 permit
regulations, enabling FWS to determine that the action was not a major
Federal action that would significantly affect the quality of the human
environment, and to avoid development of an EIS at that time. However,
most of the commitments made in the mitigated FONSI have yet to be
undertaken. The need for an EIS was also mitigated, according to the
FONSI, by the Service's establishment of conservative limits on eagle
permit issuance until additional data was available as well as to
provide issuance of permits for take resulting in mortality for two
reasons: (1) ``to reduce the ongoing occurrences of unauthorized and
unregulated mortality contributing to eagle losses'' and (2) ``to
reduce long-term risk of take.'' Furthermore, the 2009 final EA did not
envision or address numerous prospective permits authorizing activities
causing ongoing and sustained eagle mortality--such as wind
development--but rather were attempting to address historical take from
unregulated entities. Extending the permit tenure to 30 years without
undergoing a new, comprehensive NEPA analysis, much less carrying out
the commitments made in the 2009 FONSI, is not in accordance with NEPA.
Response: As stated above, this rulemaking primarily alters the
maximum permit duration from 5 years to 30 years, a change that is
primarily administrative in nature and not anticipated to result in
more than minimal environmental impacts. The conservative take
thresholds applied to eagle permits will continue as nothing in this
rulemaking affects either the conservation standards in the 2009 rule
or the 2009 EA supporting it.
Environmental impacts of activities on local or regional eagle
populations will be addressed in the NEPA analysis of direct, indirect,
and cumulative impacts for each permitted project.
Comment: The NEPA provides that certain extraordinary circumstances
prevent agencies from categorically excluding actions, and four
different extraordinary circumstances as set forth in the NEPA
regulations apply in this case.
There are potentially significant effects on future
protection of important natural and cultural resources and migratory
birds (43 CFR 46.215(b)).
Highly controversial effects (43 CFR 46.215(c)).
Highly uncertain and potentially significant effects
becoming more uncertain further into the future (43 CFR 46.215(d)).
A decision in principle with potentially significant
effects (43 CFR 46.215(e)).
Response: As explained above, the Service has reviewed our reliance
upon this categorical exclusion against DOI's list of extraordinary
circumstances, at 43 CFR 46.215. We have found that none apply to this
final rule. The NEPA compliance conducted in support of any permit
issuance will also address the topics highlighted in the extraordinary
circumstances cited by the commenter.
Comment: The lack of reliable scientific data on golden eagle
populations warrants an analysis under NEPA.
Response: The 2009 EA acknowledged the lack of reliable scientific
data on golden eagle populations and set conservative regional
thresholds for annual permitted take of eagles in light of that lack of
reliable data. The Service anticipates that scientific data quality on
eagle population dynamics will continue to improve and any new
information and data will be considered during the NEPA review for
future permit determinations.
Comment: Separate, comprehensive regulations should be developed
for wind power along with a robust NEPA process. In the meantime, until
such NEPA analysis is conducted, programmatic permits for wind energy
facilities should be considered interim measures and the 5-year tenure
limit should be retained.
Response: Development of comprehensive regulations governing wind
power development and operations is beyond the Service's authority. The
Service has the authority under BGEPA to authorize take of eagles in
the course of otherwise legal activities. The Service may develop eagle
permit regulations specifically tailored to wind-energy projects in the
future. If the Service chooses to develop such regulations, it will
comply with NEPA at that time and review the anticipated impacts of
such regulations.
Comment: The cost and time associated with conducting a NEPA
[[Page 73715]]
analysis for each individual permit may be excessive, particularly when
combined with the up-front permit application and advance payment of
administrative fees. Other permits issued by the Service do not require
NEPA review without typical NEPA-triggering criteria. The Service
should consider conducting a programmatic NEPA review of the permit
process rather than each permit individually.
Response: We conducted a general NEPA review of the permit process
in 2009 when we first issued new regulations authorizing incidental
take of eagles, and established thresholds for permit issuance. That
NEPA analysis presented a general environmental review of the impacts
of issuing permits under all the Service's eagle permit regulations,
including the permits authorized by the 2009 regulations. The purposes
of NEPA may be better served when the impacts of, and alternatives to,
specific activities authorized by permits are considered and analyzed
individually at the appropriate time.
Fees--Application Processing and Administrative
Comment: There should be no permit application and administration
fees. To the extent that the Service has either a mandatory or
discretionary duty to issue incidental take permits, the Service should
seek Congressional appropriations to support those regulatory
functions.
Response: Issuance of incidental take permits is a discretionary
function for the Service. Permits are special services with benefits
that apply to specific individuals or companies (the permittees). Both
Congress and OMB have directed Federal agencies to recoup the costs of
permit issuance and other special services directly from the recipients
of those permits and other services, not through appropriations, to
prevent American taxpayers from having to bear those costs.
Comment: The administration fee should not be fixed because the
costs are certain to increase significantly over 30 years.
Response: Costs are likely to rise, so the administration fee may
not always recoup Service expenditures. However, we cannot predict
exactly how much costs will increase. Allowing for a ``floating'' fee
would be difficult to administer and could increase administrative
costs. Also, a fixed fee provides more certainty to permittees.
Comment: An initial smaller fee should be paid upon submission of
the permit application with the entire fee being paid if the permit is
approved.
Response: The purpose of the application processing fee is to cover
the costs to the Service for resources and staff time needed to review
the application. The cost should, as much as possible, be borne by the
applicant, not the taxpayer. For that reason, the fee is designed to
capture the full anticipated cost of reviewing the application,
including providing technical assistance prior to submittal of the
application. Those costs are not necessarily higher if the application
is approved and a permit is issued.
Comment: The entire administration fee should be collected at the
time the permit is issued.
Response: We intend to collect the administration fee for each 5-
year interval every 5 years, as we evaluate and certify permits. This
will eliminate the need to refund portions of an administrative fee if
a project stops operations or if a permit is suspended or revoked.
Comment: Fees should be at least partially refunded if a permit is
revoked.
Response: See the two previous responses.
Comment: For some permit applicants, the initial permit fee may
create a financial burden that could be alleviated by spreading
payments in installments over multiple years.
Response: What the commenter refers to as a permit fee is actually
a permit application processing fee. Because it is intended to cover
the cost of providing both technical assistance leading up to an
application being submitted and the review of the application, we need
to collect the fee when the application is filed.
Comment: The large fee, in combination with uncertainty about what
will be required, is likely to be a deterrent to applying for a permit.
There have been no prosecutions of wind companies for taking eagles; if
there are no consequences for taking eagles, and the application fees
will dramatically increase, why will companies suddenly apply for
permits?
Response: Wind energy companies are not exempt from the Eagle Act
or MBTA prohibitions against take. Though there have been no
prosecutions of wind companies for take of eagles, investigations are
ongoing.
Comment: The Service needs to propose the definition of ``small
impact'' for public notice and comment before finalizing it. Further,
the definition of small impact needs to be clearly defined and
quantified in regulation in terms of eagle take numbers, project size,
risk category, or other relevant criteria to ensure applicants are
fully advised regarding the costs of permit applications as well as to
avoid future conflicts over what permits qualify for the lower fee.
Response: Proposing a specific definition may have been helpful for
generating comment. We received no input during the public comment
period that would help to define ``small impact.'' Moreover, because
the term ``small impact'' was confusing, we have replaced it with
``low-risk.'' In the preamble, we clarify that the ``low-risk''
category is designed to substantially reduce permit application
processing fees for projects that we can identify, without committing
substantial staff resources, as likely to have minimal or no impacts to
eagles even though take is possible over the lifetime of the project.
Comment: It is unclear whether the size standards established by
the Small Business Administration (SBA) will be the basis for assessing
small-impact projects.
Response: No, the SBA size standards are based on a variety of
factors, none of which impacts eagles. The idea behind our proposed
``small impact'' project category--now called ``low-risk''--is to
reduce permit application processing fees for projects that we can
identify without committing substantial staff resources, as likely to
have minimal or no impacts to eagles even though take is possible over
the lifetime of the project.
Comment: Small projects can have large impacts, particularly
cumulatively. Application of a category for small-impact projects,
unless carefully administered, would reduce the Service's oversight and
ability to assess cumulative impacts, and could be used to avoid
appropriate conservation measures.
Response: We agree that is important to have a sound basis for
categorizing some projects as small impact to reduce the possibility
that such projects take more eagles than anticipated or have large
impacts cumulatively. Accordingly, the definition of ``low-risk'' that
we are adopting is based on the magnitude of impacts to eagles, and the
existence of sound predictive tools to estimate the impacts.
Comment: ``Small impact'' projects should be subject to
administration fees so the Service will have oversight to ensure the
projects are not having greater impacts than anticipated.
Response: We agree with this comment. Because ``low-risk'' permits
will require some monitoring and reporting, there will be costs to the
Service as we review the reports. We expect that most low-risk projects
will not take any eagles, but in rare cases
[[Page 73716]]
when take occurs, there may be a need to assess potential measures a
permittee can take to further reduce the likelihood of additional take.
To cover what we anticipate to be typical post-issuance costs to the
Service, holders of low-risk permits will be assessed an administration
fee of $500 every 5 years.
Comment: Fees collected should be used to increase enforcement of
Eagle Act violations.
Comment: Some of the fees should be allocated to the States to help
them defray the costs of surveys and monitoring they do that the
Service relies on. If there are unused funds (e.g., if a project does
not continue for the duration of the original permit tenure), they
should be banked and distributed to States.
Comment: The Service should consider the cost/benefit of
transferring some of the permit administrative costs to on-the-ground
mitigation, particularly for industries that may not be able to front-
load the permit processing and administrative fees.
Response: The Service's Office of Law Enforcement is funded
independently of the Migratory Bird Program, which promulgates and
administers Eagle Act permits and regulations. To recover the cost of
administering these permits, the Migratory Bird Program will need to
retain the full amount of the permit application processing fee. The
fees cannot be distributed to the States or used for mitigation.
Comment: The Service should clarify whether the intent of the fee
structure is to require a permit for multiple facilities in a project
or whether each individual facility, regardless of whether it is
developed or owned by the same entity, is required to obtain a permit.
A combined permit for utilities that have multiple facilities or large
service territories would minimize the workload and cost for FWS by
avoiding multiple applications from the same company for different
projects and would streamline reporting and permit administration under
one permit. It also would afford protection to eagles and other
migratory birds across a larger geographic area.
Response: Permits will normally be required for individual
facilities that are likely to take eagles. Different projects in
different locations would require different (additional) analyses.
Comment: Fees should be structured to cover the Service's costs of
monitoring and compliance for the life of the project. As proposed, the
fees appear to be too low to enable the Service to adequately monitor
or enforce the permits. A comprehensive cost analysis should be
prepared by the agency.
Response: We will observe how the program operates once long-term
permits are issued and monitoring begins. If the fees prove to be
inadequate, we can revise them in a future rulemaking.
Comment: The Service should consider using cost reimbursement
agreements in lieu of an application fee. These mechanisms, which are
frequently used for development of environmental analyses under NEPA
and right-of-way and special use authorizations on public lands, can
more closely track the actual cost of processing permit applications.
Response: As the program matures, and the actual costs of
administering permits are demonstrated, a cost-reimbursement process
can be considered.
Comment: Is the cost and time of the NEPA review covered in the
cost of the application? If the NEPA cost is not covered in the
application fee, can the FWS please address the anticipated additional
costs in the economic analysis, including direct cost of NEPA review
and associated costs of timing delays?
Response: The permit application processing fee is designed to
cover the cost of NEPA review.
Transferability of Permits
Comment: The proposed language allowing permits to be transferred
says that the Service will ``negotiate such permits if successive
owners agree to the terms of the permit.'' The word ``negotiate''
implies that the Service may seek to impose additional restrictions via
the terms of the permit as a condition of the transfer. This
effectively reduces the value of the permit.
Response: The phrase the commenter is concerned about is not in the
regulations, but only in the preamble. We did not intend it to imply
that the transfer will introduce new opportunities to impose additional
restrictions. We used the word consistent with the following
definitions found in the Merriam-Webster Online Dictionary: ``to confer
with another so as to arrive at the settlement of some matter;'' ``to
deal with (some matter or affair that requires ability for its
successful handling): manage.''
Comment: Permits should not be transferable. New owners of
facilities should have to reapply and be approved through the same
process the original owner traveled.
Response: The commenter did not give a reason why he or she
believes permits should not be transferable if the successor is subject
to the some terms and conditions as the original permittee. We also do
not see a good argument against allowing transfer, and we see good
reasons to allow it. Land and businesses frequently change hands.
Requiring a new permit application at transfer would be overly
burdensome to the parties involved, including the Service, without
providing any conservation benefit to eagles.
Comment: The proposed regulations allow for a transfer of the
permit to a new owner, and also allow an extension of the permit to
anyone authorized to carry out the permittee's activities. The
Department of the Interior compares this proposed arrangement to the
right of transfer and extension afforded State and local governments,
but private companies are not required to consider the public interests
the way governments do, and should not be given the same powers.
Response: The provision being objected to in this comment (50 CFR
13.25(d)) pre-dates this rulemaking and applies to all permits issued
by the Service. Without this provision every employee and volunteer at
any permitted business or organization would have to obtain his or her
own permit, which would be overly burdensome and unnecessary because
the permitted business/organization is already responsible for ensuring
employees and volunteers comply with the permit.
Comment: A potential conflict could arise between the
responsibilities of the original permit holder and the successor based
on the requirement that the ``successor . . . will implement the
relevant terms and conditions of the permit, including any outstanding
minimization and mitigation requirements.'' Placing the burden of
outstanding minimization and mitigation requirements upon the successor
may provide a disincentive for the original permit holder to complete
all mitigation requirements. The permit holder should be responsible
for all mitigation requirements incurred during the period of their
ownership, and all mitigation requirements should be up to date as of
the time of permit transfer.
Response: When the successor agrees to the terms of the original
permit, he becomes responsible for implementing any outstanding
mitigation requirements. Any disincentive the original permit holder
may experience for carrying out the terms of his or her permit would
likely be balanced by his
[[Page 73717]]
incentive to find a buyer willing to take on the permit and its
outstanding legal obligations. We see no conservation benefit to
requiring the responsibility to remain with the original permittee once
a permit is transferred.
Comment: This proposed language lacks any reasonable specificity
ensuring the successor or transferee permittee will be held accountable
to the permit terms and conditions of the transferor. For permits to be
transferable, there must be enforceable financial guarantees that
permit conditions will be met by the permit holder. It is not enough
for the Service to accept written assurances of ``sufficient funding''
without specifying what would constitute as qualifying written
assurance. Also, the term ``written assurances'' is not only vague, but
legally unenforceable and subject to arbitrary or inconsistent agency
application.
Response: The participating parties will need to create appropriate
legal instruments to allocate the rights and responsibilities of the
transfer recipient(s), and we will review those documents for
acceptability.
Post-Construction Monitoring
Comment: Each turbine must be closely monitored the first year in
order to ensure monitoring and reporting is not ``selective.''
Response: The Service and USGS are conducting research into post-
construction monitoring designs and will incorporate those findings
into the requirements for such monitoring under permits. Our primary
objectives are to ensure such monitoring is unbiased and provides
meaningful estimates of actual fatalities, taking into consideration
the anticipated risk of the project.
Comment: The permittee should provide funding to the Service to
hire independent contractors to do the monitoring to ensure no bias.
Self-monitoring is inherently unreliable. Permittees have a strong
incentive to underreport. The Service will not have the resources to
verify reporting unless the permittee is responsible for the cost.
Response: The Service relies on many permittees to self-monitor and
self-report. We believe this is an effective way to collect information
about project impacts to wildlife, including eagles. Failure to report
required information could be a violation of a permit condition and
result in revocation of the permit.
Comment: A standardized protocol for post-construction mortality
monitoring should be required under long-term permits.
Response: Though there is no set protocol at present, USGS and the
Service are further developing protocols as part of the adaptive
management process under initial eagle take permits. The National Wind
Coordinating Collaborative's comprehensive guide to studying wind
energy-wildlife interactions provides a useful starting point to
develop post-construction monitoring.
Comment: Under the current regulations at 50 CFR 22.26, post-
construction monitoring may be required for up to 3 years. The duration
of monitoring needs to be more flexible to account for the longer
duration of projects.
Response: The regulations at 50 CFR 22.26(c) state that the Service
may require post-construction monitoring and that permittees submit an
annual report of such monitoring. For ongoing activities the monitoring
may be required over the life of the activity or the term of the permit
if long-term monitoring is necessary for adaptive management under the
permit or if it is likely to provide data valuable for protecting
eagles. The Service will make mortality information from annual
monitoring reports submitted by permittees available to the public.
Comment: The permits should require wind facilities to allow
government personnel access onsite to monitor for mortalities and
verify that conservation measures are being implemented. Currently,
many wind facilities deny anyone access and claim that their data are
proprietary.
Response: All permits issued under Sec. 22.26 allow ``Service
personnel, or other qualified persons designated by the Service, access
to the areas where eagles are likely to be affected, at any reasonable
hour, and with reasonable notice from the Service, for purposes of
monitoring eagles at the site(s)'' (Sec. 22.26(c)(4)). Per 50 CFR
13.47, Service Law Enforcement officers do not need to give notice for
site visits.
Comment: Nest occupancy monitoring should be required for the life
of the permit.
Response: We disagree. We expect that if there is a disturbance
effect on proximate nesting eagles, that effect will be most likely
during construction and initial operation of the facility.
Comment: The Service should develop a set of standard monitoring
and reporting requirements with regard to potential impacts on eagles
of transmission and distribution infrastructure to allow for effective
planning and budgeting for utility projects. Permits for such projects
should provide that monitoring may be terminated if no impacts have
been identified or if impacts are likely to occur only over a certain
period of time.
Response: Terminating monitoring altogether may not be prudent.
Conditions change, and therefore the level of take may change. However,
it seems reasonable that the frequency and/or extent of monitoring
might be reduced after a period of time.
Comment: Proactive efforts by a utility to conduct surveys to
identify high-risk electrocution areas for raptors will result in
greater numbers of mortalities being discovered and reported. This
greater effort would elevate numbers compared to years prior to surveys
being conducted. Surveys may find mortalities due to other causes, such
as shooting, vehicle collision, and lead poisoning, but which are
discovered in advanced stages of decomposition/bones where cause of
death cannot be determined, thereby elevating numbers reported.
Utilities could be penalized for proactive survey efforts that cause
the utility to exceed allowed take (i.e., ``additional specified
mitigation measures that would be triggered if the level of take
anticipated is exceeded or if new scientific information demonstrates
that the additional mitigation measures are necessary for the
preservation of eagles'').
Response: The obligation to avoid taking eagles already exists
under the Eagle Act and the MBTA; this rule merely provides for long-
term permits to authorize such take. If surveys reveal the utility is
taking large numbers of eagles, the utility will be responsible for
measures to reduce take and to obtain permits for any take if they want
to be in compliance with the Eagle Act. Permittees will not be held
accountable for take that cannot reasonably be attributed to their
activities.
Other
Comment: Public lands typically enjoy longer, more certain levels
of protection from development than private lands. Therefore, it is
particularly important that public lands remain as free from activities
that can harm wildlife as is possible. The Service should refrain from
issuing permits for large-scale incidental take of eagles on public
land unless the land management agency agrees to a very specific plan
of vigorous monitoring and enforcement of the permit terms.
Response: The permitted party will be responsible for monitoring,
and the Service is responsible for enforcement, although land
management agencies may assist, depending on where the project is
located. Federal land
[[Page 73718]]
management agencies have independent responsibilities to protect eagles
and other migratory birds under Executive Order 13186, Responsibilities
of Federal Agencies To Protect Migratory Birds (January 10, 2001). A
programmatic permit does not authorize development, construction, or
operation of any facility, only the take of eagles by the facility.
Comment: Even though wind power may ultimately be an important
element for avoiding climate change, the Service should not issue
permits for wind facilities built on ridge tops and eagle migration
routes--even if that is where the best winds are.
Response: When an applicant initially approaches the Service, we
advise them to collect information about eagle use of an area. Based on
information collected and provided, the Service and applicant work
together to avoid high eagle use areas. If surveys document eagles
along ridge tops or eagle migration areas, those would likely be areas
the Service would recommend avoiding. The Service will not issue a
permit unless an activity can be made compatible with the conservation
standards of the Eagle Act.
Comment: In the notice for its 2009 regulations, the Service said
that it would, in coordination with States and Indian tribes, ``develop
monitoring and research adequate to both resolve current uncertainties
in the data and to provide enhanced ability to detect the effects of
the permit program.'' The Service should invest in a comprehensive
management research program in partnership with the renewable energy
community and other stakeholders to address information gaps.
Response: The Service has convened a technical assessment team
consisting of technical experts from all Federal agencies with a stake
in eagle conservation and the State fish and wildlife agencies to
undertake this very task. The Service has invited tribes to participate
in this process as well.
Comment: Permits that predate the extended permit tenure should not
be extended beyond 5 years unless amended to comply with standards for
30-year permits.
Response: We agree. Existing 5-year permits will not automatically
be extended. Any permittee with an already issued programmatic permit
would need to apply for an extension and must comply with the standards
for long-term permits established by this final rule to obtain a long-
term permit.
Comment: Permitted wind energy facilities should be required to
allow researchers on their premises to conduct studies aimed at
reducing impacts to eagles as well as other migratory birds.
Response: Permitted facilities will be required to allow access by
the Service and its agents. We will likely audit monitoring records of
the permittee, and we may conduct our own monitoring. But we cannot
extend this authority to other individuals or entities. However, the
data collected under the post-construction monitoring and provided to
the Service as required by a permit will be available to the public.
Comment: The Service should extend post-delisting monitoring of
bald eagles beyond the current commitment of 20 years. It is critical
to understand regional eagle population levels and trends, as well as
sources of cumulative risk on the landscape when evaluating risks
associated with a given permit application.
Response: Many of the surveys that were done while the bald eagle
was listed as an endangered, and then a threatened, species were
conducted by the States. Neither the Service nor most States have the
resources to extend monitoring for a species that is relatively
healthy, when surveys and monitoring are much needed for other species
that may be in peril.
Comment: The Service should commit to convening periodic meetings
of scientists and State wildlife agency personnel with knowledge of
regional eagle population levels and trends to share data and develop
recommendations for allowable take levels by region, prior to changing
current permitting practices.
Response: We do convene and participate in such meetings and agree
they are of value.
Comment: The following statement is inaccurate: ``Utility-scale
wind energy facilities and electric transmission companies are likely
to be the most frequent programmatic permit applicants because of the
known risk to eagles from collision with wind turbines and electric
power lines.'' Collisions with transmission lines are not commonly
documented for golden eagles.
Response: We agree with this comment. Although collisions with
transmission lines are not unheard of, we should have said: ``Utility-
scale wind energy facilities and electric transmission companies are
likely to be the most frequent programmatic permit applicants because
of the known risk to eagles from collision with wind turbines and
electrocution on power lines.''
Comment: The Service should consider developing a streamlined
process for adding eagle take provisions to existing Special Purpose
Permits that allow salvage of bird carcasses under power lines and at
energy facilities. Such a process would likely increase utility
participation due to time and cost efficiencies for permitting and
consideration of sensitive or proprietary company information. Greater
utility participation in this process would likely benefit eagle
populations and aid the Service in meeting its no net loss thresholds
by increasing the number of proactive pole retrofits.
Response: Electric utilities and energy companies with Special
Purpose Permits that allow salvage of bird carcasses may find the
process of applying for eagle take permits somewhat easier because of
practices they have already established to qualify for the salvage
permits. Such practices include implementation of good monitoring plans
and protocols and a commitment to implementing measures to reduce take.
However, there are very significant differences in the purpose,
requirements, and criteria for the two types of permits, not the least
of which is that the Special Purpose permits do not cover eagles,
whereas the eagle take permits cover only eagles.
Comment: Permitted wind energy facilities should be required to
allow salvage of dead birds [eagles] by holders of salvage permits
subject to requirements that the carcasses be turned over for law
enforcement purposes and eagle carcasses be sent to the National Eagle
Repository.
Response: Permitted wind energy facilities will be required to
monitor for take at projects and to collect dead birds there. Salvage
of birds at permitted wind energy facilities must be for purposes of
accurately determining species fatality rates and determining whether
individual turbines or strings of turbines are responsible for the
majority of eagle fatalities. Salvage protocols should include
standardized carcass searches, searcher efficiency trials, and carcass
removal by scavenger trials. Allowing another party to pick up
carcasses at these sites would interfere with such protocols.
Comment: A condition of permits to wind companies should be to pick
up all dead birds as often as possible to minimize the risk to
scavenging eagles.
Response: This requirement is likely to be a condition on most, if
not all, programmatic permits.
Comment: If power line utilities are interested in applying for a
programmatic take permit for their facilities or the construction of
additional facilities, will the FWS be required to review the existing
operations and maintenance for the existing infrastructure in order to
issue
[[Page 73719]]
a permit? Permit applicants with existing facilities (such as existing
electrical systems) should be allowed to use their own proprietary
eagle mortality data to estimate future eagle take rather than relying
on theoretical modeling. Mortality estimates should be specific to the
species and type of facility being considered. While companies with
existing facilities and data would provide this data to the Service as
part of the permit application, companies would require assurances from
the Service regarding disclosure of sensitive, confidential, or
proprietary information (including, but not limited to, construction
engineering and design, facility planning, mortality data, customer
information, etc.).
Response: Eagle mortality data submitted with an application for a
programmatic take permit would not be treated as confidential business
information. Additionally, the Service expects to make eagle mortality
information from annual reports and 5-year review compilation reports
public.
Comment: The Service should take steps to streamline and expedite
the process for making eagle permitting decisions. The lengthy and
uncertain permitting process for wind development projects
significantly compromises the industry's ability to attract financing
and bring much-needed clean energy to market, and eagle permitting
constitutes just one of a multitude of permitting hurdles developers
face in moving projects forward. There should be an inter-agency
consultation process similar to that provided by ESA section 7(a)(2).
Response: The inter-agency consultation process provided by ESA
section 7(a)(2), which applies only to actions authorized, funded, or
carried out by Federal agencies, is statutorily defined in the ESA and
further clarified in agency ESA-implementing regulations. There is no
statutory inter-agency consultation provision in the Eagle Act. The
Service did not propose creating an ESA-like consultation process for
eagle incidental take permits. As we move forward with additional
modifications to the Eagle Act regulations, we will consider
alternative processes for issuing take permits.
Comment: The Service should make permitting decisions on a regional
scale where multiple projects are proposed, rather than issuing
mortality permits to each facility.
Response: As noted above, permits will normally be issued to
individual facilities that are likely to take eagles. Even for single-
facility permits, our NEPA analysis will consider the cumulative
impacts of all projects already operating in a given region. Where
multiple projects are proposed in a given region or operated by a
single company, we may issue a multi-facility permit. While each
facility would be responsible for operation in accordance with the
terms and conditions of the multi-facility permit, a comprehensive
programmatic NEPA process at the regional scale where multiple projects
are proposed would facilitate consistency between permit conditions for
each operator and better address cumulative impacts. In such cases,
project proponents must provide the Service with survey data and other
additional information as part of programmatic permit applications.
Therefore any multi-facility permits will ensure that the cumulative
impacts of all the facilities included in such projects are taken into
account.
FWS understands that some stakeholders prefer an alternative permit
framework based on the concept of comprehensive ``regional eagle
conservation plans'' where permits are issued based on regional
population levels. Further, some stakeholders have suggested that the
Service should work to develop these ``regional eagle conservation
plans'' before beginning to issue 30-year permits. The Service agrees
that the regional approach envisioned by such plans is appropriate and
believes it has a permitting process that will ensure conservation at
regional and local scales.
The 2009 Final Environmental Assessment describes how the Service
will assess the effects of permitted activities on eagle populations.
The 2009 Final Environmental Assessment used the best available
information at the time to estimate regional populations and establish
regional take thresholds needed to maintain stable or increasing
populations. Since we completed the Final Environmental Assessment, the
Service has developed the Eagle Conservation Plan Guidance for Land-
based Wind Energy (ECPG). The ECPG further elaborates on how we
recommend wind project developers and operators collect information
about eagle use near their projects as they prepare ECPs. We are
assessing project impacts on eagles relative to local area populations,
which are smaller than BCRs for golden eagles or Bald Eagle Management
Units. Bald eagle local area populations are the number of eagles
within 43 miles of a project. Golden eagle local area populations are
with 140 miles of a project. We calculate eagle local area populations
and consider all known sources of eagle fatalities within the local
area as we assess cumulative impacts to local and regional eagle
populations.
Service and U.S. Geological Survey biologists, as well as
biologists at other agencies and universities, have been conducting,
and continue to carry out, research on eagle populations, including at
the regional scale. They have: (1) Evaluated existing data on golden
eagle population status and trends and published updated information;
(2) worked towards developing models to predict golden eagle
occurrence; (3) developed initial models to predict eagle mortalities
at wind farms and methods to evaluate and update those predictive
models as data on actual fatalities at permitted facilities become
available; and (4) developed a general framework to test experimental
measures to reduce eagle fatalities at operating wind facilities with
programmatic eagle take permits. Agencies have also conducted or
sponsored aerial nesting surveys of golden eagles in some states. Work
is underway by various stakeholders to enhance understanding of
mitigation and siting options, as well as monitoring strategies. As
these research projects advance, they will provide the Service
additional information on which to base permit, policy, and regulatory
decisions related to national eagle conservation.
For the above stated reasons, we believe there is a process in
place that builds on insight from the 2009 Final Environmental
Assessment and the ECPG (including best management practices and take
thresholds for regional eagle management units) to make informed
determinations regarding issuance of eagle take permits for up to 30
years. Moreover, with particular focus on the highest priority regions,
and considering the best emerging research as it becomes available, we
will continue working to improve our understanding of sustainable
population levels, monitoring plans, and siting/mitigation strategies
in order to better inform our permitting decisions. In addition to the
above, project proponents must provide the Service with survey data and
other additional information as part of programmatic permit
applications. For the above stated reasons, we believe there is a
process in place to make informed determinations regarding issuance of
eagle take permits for up to 30 years.
An additional consideration is that comprehensive regional
conservation plans would likely require redirecting significant
resources and take several years to complete. This could in turn slow
the issuance of eagle permits currently under review to new and
[[Page 73720]]
existing operators, and impinge on our ability to maximize learning
opportunities that will provide conservation benefits to eagles under
these initial permits. We believe the conservation gains achieved by
working with operators through the permitting process are of the
highest importance, and therefore should take precedence in the
allocation of staff resources.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Management and
Budget, Office of Information and Regulatory Affairs (OIRA) will review
all significant rules. The OIRA has determined that this rule is
significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996 (Pub. L. 104-121)), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effect of the rule on small businesses,
small organizations, and small government jurisdictions. However, no
regulatory flexibility analysis is required if the head of an agency
certifies the rule would not have a significant economic impact on a
substantial number of small entities. Most community-scale and
distributed wind facilities and other small entities are not likely to
take eagles or need an eagle take permit, so this rule will not affect
those small entities.
SBREFA amended the Regulatory Flexibility Act to require Federal
agencies to provide the statement of the factual basis for certifying
that a rule would not have a significant economic impact on a
substantial number of small entities. We have examined this rule's
potential effects on small entities as required by the Regulatory
Flexibility Act and determined that this action will not have a
significant economic impact on a substantial number of small entities.
Since the eagle permit regulations were published we have received
few programmatic permit applications for utility-scale wind energy
facilities. As noted previously, we anticipate a greater volume of
permit applications in the future, although we expect the number to
increase gradually for several years and perhaps eventually reach an
average of 40 or fewer per year. Utility-scale wind energy facilities
and electric transmission companies are likely to be the most frequent
programmatic permit applicants, because of the known risk to eagles
from collisions with wind turbines and electrocution on power lines.
Many wind project developers and operators are by definition
``small entities.'' The SBA Small Business Size Standards identify a
utility engaged in electric power generation and electric power
distribution as a small entity if its total output for the preceding
fiscal year did not exceed 4 million megawatt hours (13 CFR 121.201).
The total installed utility-scale windpower in the U.S. at the end of
2012 was 60,007 megawatts (American Wind Energy Association 2013).
Based on the SBA standard, we estimate that a substantial number of
wind power applicants for programmatic permits will be small entities.
Given current domestic wind energy cumulative wind capacity and other
wind energy industry statistics, we anticipate that a substantial
number of applicants for programmatic permits for wind energy projects
will be small entities as defined in 13 CFR 121.201, such as industrial
building construction companies with less than $33.5 million of annual
receipts, and electrical generating companies with less than 4 million
megawatt hours of generation, transmission, and/or distribution.
We anticipate that most of the applications will be from larger
facilities. Community scale and distributed wind facilities that use
smaller tower and rotor blades are unlikely to pose a risk to take
eagles if sited responsibly, and may not need eagle take permits.
An applicant for a programmatic permit would pay a $36,000
processing fee to apply for a permit up to 30 years. Additionally a
permittee would pay an administration fee ranging from $2,600 to
$15,600, depending upon the permit tenure. Amortized over the life of a
30-year permit, this would range from $167 per year to $1,720 per year.
We believe most applicants will seek a 30-year permit to match the life
of the project. We do not believe this would impose a significant
economic impact on these small entities.
Although businesses in other business sectors, such as railroads,
timber companies, and pipeline companies, could also apply for
programmatic permits, we anticipate the number of permit applicants in
such sectors to be very small, on the order of one or two per year for
each such sector. Thus, we anticipate that the rule will not have a
significant economic impact on a substantial number of small entities
in sectors other than the utility sector as described above.
In addition to the increased application processing fee, the
additional specified mitigation measures that could be required under
the terms and conditions of permits issued with a term of longer than 5
years could result in some additional costs to the permittee, but those
costs should be offset by the reduction in uncertainty for the
permittee achieved by securing a 30-year programmatic permit rather
than a 5-year standard permit. Consequently, we certify that, because
this rule will not have a significant economic effect on a substantial
number of small entities, a regulatory flexibility analysis is not
required.
This rule is not a major rule under SBREFA (5 U.S.C. 804(2)).
a. This rule will not have an annual effect on the economy of $100
million or more.
b. This rule will not cause a major increase in costs or prices for
consumers; individual industries; Federal, State, or local government
agencies; or geographic regions.
c. This rule will not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we have determined the following:
a. This rule will not ``significantly or uniquely'' affect small
governments. A small government agency plan is not required. The
regulatory revisions will not affect small government activities in any
significant way.
[[Page 73721]]
b. This rule will not produce a Federal mandate of $100 million or
greater in any year. It is not a ``significant regulatory action''
under the Unfunded Mandates Reform Act.
Takings
In accordance with E.O. 12630, the rule will not have significant
takings implications. This rule does not contain any provisions that
could constitute taking of private property. Therefore, a takings
implication assessment is not required.
Federalism
This rule will not have sufficient Federalism effects to warrant
preparation of a Federalism assessment under E.O. 13132. It will not
interfere with the States' abilities to manage themselves or their
funds. No significant economic impacts are expected to result from the
regulations change.
Civil Justice Reform
In accordance with E.O. 12988, the Office of the Solicitor has
determined that the rule will not unduly burden the judicial system and
meets the requirements of sections 3(a) and 3(b)(2) of the Order.
Paperwork Reduction Act
The Office of Management and Budget (OMB) reviewed and approved the
information collection requirements associated with migratory bird
permits, including 5-year eagle take programmatic permits, and assigned
OMB Control Number 1018-0022, which expires February 28, 2014. We may
not conduct or sponsor and a person is not required to respond to a
collection of information unless it displays a currently valid OMB
control number. This rule contains new information collection
requirements associated with long-term eagle take programmatic permits.
OMB has approved these new requirements and assigned OMB Control Number
1018-0151, which expires October 31, 2016.
We have revised the regulations for permits for take of golden
eagles and bald eagles where the take is associated with, but not the
purpose of, the activity. We have extended the maximum term for
programmatic permits to 30 years, if they incorporate conditions
requiring the permittee to implement additional adaptive conservation
measures, if necessary, to ensure the preservation of eagles. This
change will facilitate the development of renewable energy and other
projects that are designed to be in operation for many decades. This
change will also provide more certainty to project proponents and their
funding sources, while continuing to protect eagles consistent with
statutory mandates. We have also increased the application processing
fee for most programmatic permits from $1,000 to $36,000. See ``Permit
Application Processing Fee and Administration Fee,'' above, for more
detailed information on the increase in permit fees.
Title: Long-Term Eagle Take Programmatic Permits, 50 CFR 13 and 22.
OMB Control Number: 1018-0151.
Service Form Numbers: 3-200-71 and 3-202-15.
Type of Request: New collection.
Description of Respondents: Individuals; businesses; and State,
local, and tribal governments. We expect that the majority of
applicants seeking a 30-year permit will be in the energy production
and electrical distribution business.
Respondent's Obligation: Required to obtain or retain a benefit.
Frequency of Collection: On occasion.
----------------------------------------------------------------------------------------------------------------
Estimated
Estimated number of Completion Total annual
Activity number of annual time per burden hours
respondents responses response
----------------------------------------------------------------------------------------------------------------
Application*.................................... 20 20 452 9,040
Monitoring and Reporting........................ 20 20 312 6,240
Recordkeeping................................... 20 20 30 600
Amendments...................................... 3 3 70 210
Transfers....................................... 3 3 120 120
---------------------------------------------------------------
Totals...................................... 66 66 .............. 16,210
----------------------------------------------------------------------------------------------------------------
* Includes researching permit requirements, conducting preapplication surveys/studies, and completing the
application form.
Estimated Total Nonhour Burden Cost: $688,000, based primarily on
application processing fees, as well as fees for amendments to permits
and for transfer of permits. States, local governments, and tribal
governments are exempt from paying these fees.
When this final rule is effective, we will incorporate the burden
for the new information collection requirements into OMB Control No.
1018-0022 and discontinue OMB Control Number 1018-0151.
You may send comments on any aspect of these information collection
requirements to the Service Information Collection Clearance Officer,
U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, Mail Stop 2042-
PDM, Arlington, VA 22203 (mail) or hope_grey@fws.gov (email).
National Environmental Policy Act
This rule is excluded from further NEPA analysis in an
Environmental Assessment or an Environmental Impact Statement under
Department of the Interior categorical exclusion 43 CFR 46.201(i),
which excludes from further NEPA analysis ``Policies, directives,
regulations, and guidelines: That are of an administrative, financial,
legal, technical, or procedural nature; or whose environmental effects
are too broad, speculative, or conjectural to lend themselves to
meaningful analysis and will later be subject to the NEPA process,
either collectively, or case-by-case.'' Several provisions of this rule
are specifically administrative or financial in nature, and therefore,
subject to the first part of this categorical exclusion. For instance,
the implementation of a new fee schedule, the adjustments to the permit
transfer and right of succession requirements, and the reduction of the
administrative burdens and duplication of effort represented by the
extension of permit duration to a possible 30-years, instead of the
current 5-year limit, under which proponents of longer-term projects
must apply for, and the FWS review permits more frequently.
The extension of the allowable permit duration from 5 to 30 years
is subject to the second part of this categorical exclusion. Issuance
of a permit of any duration for take of eagles requires compliance with
NEPA. The environmental effects of each project, including whether the
applicant has adequately reduced and mitigated environmental effects
over the specific permit duration requested, will be
[[Page 73722]]
analyzed in more detail at that time. A 50 CFR 22.26 eagle permit must
contain permit conditions and be supported by an appropriate NEPA
analysis to ensure the underlying project or action will continue to
meet regulatory requirements. Furthermore, any authorized take must
meet the Eagle Act's preservation standard throughout the entire
duration of the permit, whether it is 5 years or 30 years. A permit
with a duration of 30 years is, thus, likely to contain more conditions
than a permit with a duration of 5 years to ensure continued compliance
over the longer time span, including conditions that incorporate
adaptive management principles, and be supported by appropriate NEPA
analysis to account for reasonably anticipated changed circumstances.
43 CFR 46.145 sets forth the Service's NEPA obligations when adaptive-
management principles are used to mitigate the uncertainty of long-term
impacts. If the original NEPA documents supporting the permit decision
did not adequately address the full range of potential revisions to the
ACPs, or substantive new permit conditions are added, revisions would
require additional NEPA review to support a decision on the revised
permit. Additional conditions may include specific mitigation measures,
possibly including additional compensatory mitigation requirements,
that are triggered if actual take caused by the project exceeds
anticipated take or to account for a reduction in local or regional
eagle populations. Moreover, if such conditions prove inadequate at any
time, the Service is authorized to amend permits as necessary under
both paragraph (c)(7) of 50 CFR 22.26--establishing that the Service
may amend and even revoke permits as necessary to safeguard eagle
populations--and paragraph (b) of general permit regulation 50 CFR
13.23, under which the Service may amend a permit for just cause at any
time upon a written finding of necessity.
Finally, pursuant to 43 CFR 46.205(c), we have reviewed our
reliance upon this categorical exclusion against the Department of the
Interior's list of extraordinary circumstances, at 43 CFR 46.215, and
have found that none apply to this final rule.
As explained above, the rule's impacts are primarily administrative
in nature and any potential environmental effects of extending the
permit duration will be addressed by permit conditions that ensure the
Eagle Act's preservation standard and all regulatory requirements will
continue to be met throughout the permit's duration, whether it is 5
years or 30 years. Therefore, this rulemaking is not expected to have
any potentially significant environmental effects on future protection
of eagles or other environmental resources. Similarly, the effects of
this rule are not highly controversial as they mainly involve
procedural alterations to regulatory permit provisions that are not
anticipated to have any meaningful or significant environmental effects
on eagle populations. While it is true that the anticipated impact of a
particular project is likely to be harder to predict over 30 years than
over 5 years, the permit conditions for longer-term permits will
incorporate adaptive management principles (for example, triggers
requiring additional measures for changed circumstances) designed to
ensure that the project will continue to meet all permit requirements
throughout the permit's duration. The conditions in each individual
permit must ensure that the project will continue to meet the
requirements of the permit regulations whatever the individual permit's
duration.
For all these reasons, further NEPA analysis in an Environmental
Assessment or an Environmental Impact Statement of this change to the
regulations is not required.
Endangered and Threatened Species
Section 7 of the Endangered Species Act (ESA) of 1973, as amended
(16 U.S.C. 1531 et seq.), requires that ``The Secretary [of the
Interior] shall review other programs administered by him and utilize
such programs in furtherance of the purposes of this Act'' (16 U.S.C.
1536(a)(1)). It further states that the Federal agency must ``insure
that any action authorized, funded, or carried out . . . is not likely
to jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification
of [critical] habitat'' (16 U.S.C. 1536(a)(2)). This rule, which amends
the regulations governing administration of the permitting process
under the Eagle Act, will not affect endangered or threatened species
or designated critical habitat. The rule simply increases the number of
years that a programmatic permit may be valid under certain conditions
and requires the Service to conduct 5-year reviews to monitor
compliance with the permit conditions. However, consultation under ESA
Section 7 may be required prior to issuance of a permit for an
individual project. If a project is expected to result in take of any
listed species, the permit applicant would need an incidental take
authorization under ESA Section 7 or 10.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), E.O. 13175, and 512 DM 2, we have
evaluated potential effects on federally recognized Indian tribes and
have determined that this rule will not interfere with tribes'
abilities to manage themselves, their funds, or tribal lands.
Some tribes that value eagles as part of their cultural heritage
objected to the promulgation of the 2009 eagle take permit rule based
on the belief that the regulations would not adequately protect eagles.
Those tribes may perceive further negative effects from these proposed
changes. However, eagles would be sufficiently protected under this
rule because permits with terms longer than 5 years will be issued only
to those applicants who commit to adaptive management measures to
ensure the preservation of eagles, except for applicants who are able
to implement scientifically proven measures to significantly reduce
take at the time the permit is issued (e.g., electric utilities issued
permits that require full implementation of Avian Powerline Interaction
Committee-approved measures to minimize take of migratory birds and
eagles).
Energy Supply, Distribution, or Use (Executive Order 13211)
E.O. 13211 addresses regulations that significantly affect energy
supply, distribution, and use. E.O. 13211 requires agencies to prepare
Statements of Energy Effects when undertaking certain actions. Although
this rule will facilitate the funding, construction, and operation of
numerous energy generation projects, including wind power facilities,
the rule is not a significant regulatory action under E.O. 13211, and
no Statement of Energy Effects is required.
Literature Cited
American Wind Energy Association. 2013. Industry Statistics. http://awea.org/learnabout/industry_stats/index.cfm. May 13, 2013.
Barrios, L., and A. Rodriguez. 2004. Behavioural and environmental
correlates of soaring-bird mortality at on-shore wind turbines.
Journal of Applied Ecology 41:72-81.
Kuvlesky, W.P., Jr., L.A. Brennan, M. L. Morrison, K.K. Boydston,
B.M. Ballard, and F.C. Bryant. 2007. Wind energy development and
wildlife conservation:
[[Page 73723]]
challenges and opportunities. Journal of Wildlife Management
71:2487-2498.
Millsap, B.A., G.S. Zimmerman, J.R. Sauer, R.M. Nielson, M. Otto, E.
Bjerre, R. Murphy. 2013. Golden Eagle Population Trends in the
Western United States: 1968-2012. Journal of Wildlife Management
77:1436-1448.
Walters, C.J. 1986. Adaptive management of renewable resources.
Macmillan, New York, New York, USA.
Williams, B.K., R.C. Szaro, and C.D. Shapiro. 2007. Adaptive
Management: The U.S. Department of the Interior Technical Guide.
Adaptive Management Working Group, U.S. Department of the Interior,
Washington, DC, USA.
List of Subjects
50 CFR Part 13
Administrative practice and procedure, Exports, Fish, Imports,
Plants, Reporting and recordkeeping requirements, Transportation,
Wildlife.
50 CFR Part 22
Birds, Exports, Imports, Migratory birds, Reporting and
recordkeeping requirements, Transportation, Wildlife.
Regulation Promulgation
For the reasons described in the preamble, we are amending
subchapter B of chapter I, title 50 of the Code of Federal Regulations,
as set forth below:
PART 13--GENERAL PERMIT PROCEDURES
0
1. The authority for part 13 continues to read as follows:
Authority: 16 U.S.C. 668a, 704, 712, 742j-l, 1374(g), 1382,
1538(d), 1539, 1540(f), 3374, 4901-4916; 18 U.S.C. 42; 19 U.S.C.
1202; 31 U.S.C. 9701.
0
2. Revise the table in Sec. 13.11(d)(4) to read as follows:
Sec. 13.11 Application procedures.
* * * * *
(d) * * *
(4) * * *
----------------------------------------------------------------------------------------------------------------
Permit application Administration
Type of permit CFR citation fee fee \1\ Amendment fee
----------------------------------------------------------------------------------------------------------------
Migratory Bird Treaty Act
----------------------------------------------------------------------------------------------------------------
Migratory Bird Import/Export...... 50 CFR 21............ 75................... .............. ..............
Migratory Bird Banding or Marking. 50 CFR 21............ No fee............... .............. ..............
Migratory Bird Scientific 50 CFR 21............ 100.................. .............. 50
Collecting.
Migratory Bird Taxidermy.......... 50 CFR 21............ 100.................. .............. ..............
Waterfowl Sale and Disposal....... 50 CFR 21............ 75................... .............. ..............
Special Canada Goose.............. 50 CFR 21............ No fee............... .............. ..............
Migratory Bird Special Purpose/ 50 CFR 21............ 75................... .............. ..............
Education.
Migratory Bird Special Purpose/ 50 CFR 21............ 75................... .............. ..............
Salvage.
Migratory Bird Special Purpose/ 50 CFR 21............ 75................... .............. ..............
Game Bird Propagation.
Migratory Bird Special Purpose/ 50 CFR 21............ 100.................. .............. ..............
Miscellaneous.
Falconry.......................... 50 CFR 21............ 100.................. .............. ..............
Raptor Propagation................ 50 CFR 21............ 100.................. .............. ..............
Migratory Bird Rehabilitation..... 50 CFR 21............ 50................... .............. ..............
Migratory Bird Depredation........ 50 CFR 21............ 100.................. .............. 50
Migratory Bird Depredation/ 50 CFR 21............ 50................... .............. ..............
Homeowner.
----------------------------------------------------------------------------------------------------------------
Bald and Golden Eagle Protection Act
----------------------------------------------------------------------------------------------------------------
Eagle Scientific Collecting....... 50 CFR 22............ 100.................. .............. 50
Eagle Exhibition.................. 50 CFR 22............ 75................... .............. ..............
Eagle Falconry.................... 50 CFR 22............ 100.................. .............. ..............
Eagle--Native American Religion... 50 CFR 22............ No fee............... .............. ..............
Eagle Take permits--Depredation 50 CFR 22............ 100.................. .............. ..............
and Protection of Health and
Safety.
Golden Eagle Nest Take............ 50 CFR 22............ 100.................. .............. 50
Eagle Transport--Scientific or 50 CFR 22............ 75................... .............. ..............
Exhibition.
Eagle Transport--Native American 50 CFR 22............ No fee............... .............. ..............
Religious Purposes.
Eagle Take--Associated With But 50 CFR 22............ 500.................. .............. 150
Not the Purpose of an Activity.
Eagle Take--Associated With But 50 CFR 22............ 8,000................ 500 1,000
Not the Purpose of an Activity--
Programmatic, low-risk projects,
5- to 30-year tenure [sup2].
Eagle Take--Associated With But 50 CFR 22............ 36,000............... 2,600 1,000
Not the Purpose of an Activity--
Programmatic, up to 5-year tenure.
Eagle Take--Associated With But 50 CFR 22............ 36,000............... \3\ 5,200 1,000
Not the Purpose of an Activity--
Programmatic, over 5-year to 10-
year tenure.
Eagle Take--Associated With But 50 CFR 22............ 36,000............... \3\ 7,800 1,000
Not the Purpose of an Activity--
Programmatic, over 10-year to 15-
year tenure.
Eagle Take--Associated With But 50 CFR 22............ 36,000............... \3\ 10,400 1,000
Not the Purpose of an Activity--
Programmatic, over 15-year to 20-
year tenure.
Eagle Take--Associated With But 50 CFR 22............ 36,000............... \3\ 13,000 1,000
Not the Purpose of an Activity--
Programmatic, over 20-year to 25-
year tenure.
Eagle Take--Associated With But 50 CFR 22............ 36,000............... \3\ 15,600 1,000
Not the Purpose of an Activity--
Programmatic, over 25-year to 30-
year tenure.
Eagle Take--Associated With But 50 CFR 22............ 1,000................ .............. ..............
Not the Purpose of an Activity--
Transfer of a programmatic permit.
Eagle Nest Take................... 50 CFR 22............ 500.................. .............. 150
Eagle Nest Take--Programmatic..... 50 CFR 22............ 1,000................ .............. 500
Eagle Take--Exempted under ESA.... 50 CFR 22............ No fee............... .............. ..............
----------------------------------------------------------------------------------------------------------------
[[Page 73724]]
Endangered Species Act/CITES/Lacey Act
----------------------------------------------------------------------------------------------------------------
ESA Recovery...................... 50 CFR 17............ 100.................. .............. 50
ESA Interstate Commerce........... 50 CFR 17............ 100.................. .............. 50
ESA Enhancement of Survival (Safe 50 CFR 17............ 50................... .............. 25
Harbor Agreement).
ESA Enhancement of Survival 50 CFR 17............ 50................... .............. 25
(Candidate Conservation Agreement
with Assurances).
ESA Incidental Take (Habitat 50 CFR 17............ 100.................. .............. 50
Conservation Plan).
ESA and CITES Import/Export and 50 CFR 17............ 100.................. .............. 50
Foreign Commerce.
ESA and CITES Museum Exchange..... 50 CFR 17............ 100.................. .............. 50
ESA Captive-bred Wildlife 50 CFR 17............ 200.................. .............. 100
Registration.
--Renewal of Captive-bred 50 CFR 17............ 100.................. .............. ..............
Wildlife Registration.
CITES Import (including trophies 50 CFR 17, 18, 23.... 100.................. .............. 50
under ESA and MMPA).
CITES Export...................... 50 CFR 23............ 100.................. .............. 50
CITES Pre-Convention.............. 50 CFR 23............ 75................... .............. 40
CITES Certificate of Origin....... 50 CFR 23............ 75................... .............. 40
CITES Re-export................... 50 CFR 23............ 75................... .............. 40
CITES Personal Effects and Pet 50 CFR 23............ 50................... ..............
Export/Re-export.
CITES Appendix II Export (native 50 CFR 23............ 100.................. .............. 50
furbearers and alligators--
excluding live animals).
CITES Master File (includes files 50 CFR 23............ 200.................. .............. 100
for artificial propagation,
biomedical, etc., and covers
import, export, and re-export
documents).
--Renewal of CITES Master File 50 CFR 23............ 100.................. .............. ..............
--Single-use permits issued on 50 CFR 23............ 5 \4\................ .............. ..............
Master File.
CITES Annual Program File......... 50 CFR 23............ 50................... .............. ..............
--Single-use permits issued 50 CFR 23............ 5 \4\................ .............. ..............
under Annual Program.
CITES replacement documents (lost, 50 CFR 23............ 50................... .............. 50
stolen, or damaged documents).
CITES Passport for Traveling 50 CFR 23............ 75 \5\............... .............. ..............
Exhibitions and Pets.
CITES/ESA Passport for Traveling 50 CFR 23............ 100\5\............... .............. ..............
Exhibitions.
CITES Introduction from the Sea... 50 CFR 23............ 100.................. .............. 50
CITES Participation in the Plant 50 CFR 23............ No fee............... .............. ..............
Rescue Center Program.
CITES Registration of Commercial 50 CFR 23............ 100.................. .............. ..............
Breeding Operations for Appendix--
I Wildlife.
CITES Request for Approval of an 50 CFR 23............ No fee............... .............. ..............
Export Program for a State or
Tribe (American Ginseng, Certain
Furbearers, and American
Alligator).
Import/Export License............. 50 CFR 14............ 100.................. .............. 50
Designated Port Exception......... 50 CFR 14............ 100.................. .............. 50
Injurious Wildlife Permit......... 50 CFR 16............ 100.................. .............. 50
--Transport Authorization for 50 CFR 16............ 25................... .............. ..............
Injurious Wildlife.
----------------------------------------------------------------------------------------------------------------
Wild Bird Conservation Act (WBCA)
----------------------------------------------------------------------------------------------------------------
Personal Pet Import............... 50 CFR 15............ 50................... .............. ..............
WBCA Scientific Research, 50 CFR 15............ 100.................. .............. 50
Zoological Breeding or Display,
Cooperative Breeding.
WBCA Approval of Cooperative 50 CFR 15............ 200.................. .............. 100
Breeding Program.
--Renewal of a WBCA 50 CFR 15............ 50................... .............. ..............
Cooperative Breeding Program.
WBCA Approval of a Foreign 50 CFR 15............ 250 \6\.............. .............. ..............
Breeding Facility.
----------------------------------------------------------------------------------------------------------------
Marine Mammal Protection Act
----------------------------------------------------------------------------------------------------------------
Marine Mammal Public Display...... 50 CFR 18............ 300.................. .............. 150
Marine Mammal Scientific Research/ 50 CFR 18............ 150.................. .............. 75
Enhancement/Registered Agent or
Tannery.
--Renewal of Marine Mammal 50 CFR 18............ 75................... .............. ..............
Scientific Research/
Enhancement/Registered Agent
or Tannery.
----------------------------------------------------------------------------------------------------------------
\1\ Assessed when a permit is issued.
\2\ ``Low-risk'' means a project or activity is unlikely to take an eagle over a 30-year period and the
applicant for a permit for the project or activity has provided the Service with sufficient data obtained
through Service-approved models and/or predictive tools to verify that the take is likely to be less than 0.03
eagles per year.
\3\ $2,600 assessed upon approval of permit, and for each 5-year review.
\4\ Each.
\5\ Per animal.
\6\ Per species.
[[Page 73725]]
* * * * *
0
3. Amend Sec. 13.24 by revising paragraph (c) to read as follows:
Sec. 13.24 Right of succession by certain persons.
* * * * *
(c) In the case of permits issued under Sec. 17.22(b) through (d)
or Sec. 17.32(b) through (d) or permits issued under Sec. 22.26 of
this subchapter B, the successor's authorization under the permit is
also subject to our determination that:
(1) The successor meets all of the qualifications under this part
for holding a permit;
(2) The successor has provided adequate written assurances that it
will provide sufficient funding for any applicable conservation
measures, conservation plan, or Agreement and will implement the
relevant terms and conditions of the permit, including any outstanding
minimization and mitigation requirements; and
(3) The successor has provided such other information as we
determine is relevant to the processing of the request.
0
4. Amend Sec. 13.25 by revising paragraph (b) and adding paragraph (f)
to read as follows:
Sec. 13.25 Transfer of permits and scope of permit authorization.
* * * * *
(b) Permits issued under Sec. 17.22(b) through (d) or Sec.
17.32(b) through (d) or permits issued under Sec. 22.26 of this
subchapter B may be transferred in whole or in part through a joint
submission by the permittee and the proposed transferee, or in the case
of a deceased permittee, the deceased permittee's legal representative
and the proposed transferee, provided we determine that:
(1) The proposed transferee meets all of the qualifications under
this part for holding a permit;
(2) The proposed transferee has provided adequate written
assurances of sufficient funding for the conservation measures,
conservation plan, or Agreement, and will implement the relevant terms
and conditions of the permit, including any outstanding minimization
and mitigation requirements; and
(3) The proposed transferee has provided other information that we
determine is relevant to the processing of the submission.
* * * * *
(f) In the case of permits issued under Sec. 22.26 of this
subchapter B to a Federal, State, tribal, or local governmental entity,
a person is under the direct control of the permittee if the person is
under the jurisdiction of the permittee, provided the permittee has the
regulatory authority to require the person to comply with the terms and
conditions of the permit and the permit provides that such person(s)
may carry out the authorized activity.
PART 22--EAGLE PERMITS
0
5. The authority for part 22 continues to read as follows:
Authority: 16 U.S.C. 668-668d; 16 U.S.C. 703-712; 16 U.S.C.
1531-1544.
0
6. Amend Sec. 22.26 by:
0
a. Revising paragraph (c)(3) introductory text;
0
b. Revising paragraph (h); and
0
c. Adding paragraphs (i) and (j).
The revisions and additions read as follows:
Sec. 22.26 Permits for eagle take that is associated with, but not
the purpose of, an activity.
* * * * *
(c) * * *
(3) You must submit an annual report summarizing the information
you obtained through monitoring to the Service every year that your
permit is valid and for up to 3 years after completion of the activity
or termination of the permit, as specified in your permit. If your
permit expires or is suspended or revoked before the activity is
completed, you must submit the report within 60 days of such date. The
Service will make eagle mortality information from annual reports of
programmatic permits available to the public. Reporting requirements
include:
* * * * *
(h) Permit reviews. At no more than 5 years from the date a permit
is issued, and every 5 years thereafter until a programmatic permit is
due to expire in 5 or fewer years, the permittee will compile and
submit to the Service, eagle fatality data or other pertinent
information that is site-specific for the project, as required by the
permit. The 5-year review will be comparable to the initial review of
the permit application. The Service will make eagle-mortality
information compiled in 5-year review reports available to the public.
As part of the 5-year-review process, we will determine if trigger
points specified in the permit have been reached that would indicate
that additional conservation measures as described in a permit should
be implemented to potentially reduce eagle mortalities, or if
additional mitigation measures are needed. Additional post-
implementation monitoring may be required to determine the
effectiveness of additional conservation measures.
(1) During each 5-year review, we will reassess post-construction
monitoring, fatality rates, effectiveness of measures to reduce take,
the appropriate amount and effectiveness of compensatory mitigation,
and the status of the eagle population.
(2) Depending on the findings of the review, we may make changes to
a permit as necessary, including any of the following:
(i) update fatality predictions for the facility;
(ii) require implementation of additional conservation measures as
described in the permit;
(iii) update monitoring requirements
(iv) revise compensatory mitigation requirements in accordance with
the permit, or
(v) suspend or revoke the permit.
(3) In consultation with the permittee, we will determine
compensatory mitigation for future years for the project, taking into
account the observed levels of mortality and any anticipated reduction
in mortality from additional conservation measures.
(i) Permit duration. The duration of each permit issued under this
section will be designated on its face and will be based on the
duration of the proposed activities, the period of time for which take
will occur, the level of impacts to eagles, and the nature and extent
of mitigation measures incorporated into the terms and conditions of
the permit. Standard permits will not exceed 5 years. A permit for
programmatic take will not exceed 30 years.
(j) Transfer of programmatic permits. Programmatic permits may be
transferred to new owners of facilities, provided that the new owners
have never had a permit issued by the U.S. Fish and Wildlife Service
suspended or revoked, and have not been convicted of violating a
Federal wildlife law in the last 10 years. The transferee must meet all
of the qualifications under this part for holding a permit, as well as
the requirements of Sec. 13.25(b) of this subchapter B.
Dated: November 18, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-29088 Filed 12-6-13; 8:45 am]
BILLING CODE 4310-55-P